[2021] KECPT 3 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 183 OF 2019

LEAH NJERI...............................................................................................................1ST CLAIMANT

LYDI NASERIAN.......................................................................................................2ND CLAIMANT

STEPHEN OSINMGO...............................................................................................3RD CLAIMANT

SABDIYO BASHUNA................................................................................................4TH CLAIMANT

JECONIAH KITALA.................................................................................................5TH CLAIMANT

PETER NDUNG’U.....................................................................................................6TH CLAIMANT

MARY ASHIRA.........................................................................................................7TH CLAIMANT

-VERSUS-

GREGORY MABONGAH NAULIKHA...................................................................RESPONDENT

-AND-

HAZINA SACCO SOCIETY LTD................................................................INTERESTED PARTY

RULING

1. This Claim was instituted by way of a Statement of Claim filed on 2nd March 2019. Summons were issued and the same were extracted and served upon the Respondent. Subsequently, the Respondent filed a Statement of Defence dated 25th August 2019 and denied liability, and made an Application to join the Interested Party to the proceedings. Amidst protestation, the Interested Party was joined in the proceedings.

2. While this was ongoing, the Respondent made payments to the Claimants and cleared the debt. This was clearly after the Claim had been filed, and Summons to Enter Appearance served upon the Respondents, who were by this time aware of the filed suit and even filed a Defence, roping in the Interested Parties while at it.

3. ISSUES FOR DETERMINATION

We have considered the Pleadings filed and the robust written submissions of the parties, which were well argued. This Tribunal has framed the following issue as necessary for determination;

a. Who is entitled to costs?

b. We thus proceed to rule as follows:

4. WHETHER THE CLAIMANT IS ENTITLED TO COSTS

From the record, the Interested Party did write a Demand Letters dated 3rd September 2016 and 15th February 2017, whose effect was to attempt to make the Respondent pay the amounts due before a suit is filed. These were ignored, and the Interested Party went ahead to effect deductions on the accounts of the Claimants, who later instituted the suit to recover their monies from the Respondent.

5. On realizing that a Claim had been filed, the Respondent, in lightning speed, disbursed payments of the to the Claimants. The Claimants and the Interested Party have requested for costs, since if the Respondent had paid the Claimant as initially requested, there would be no need to file a suit and incur expenses, a position that this Tribunal agrees with. Additionally, if the Respondent had admitted to his indebtedness, there would be no need to drag the Interested Party to the proceedings.

6. In defining “the event” that costs follow, we hold that had the Respondent paid the Claimants [vide Judicial Hints on Civil Procedure, 2nd Edition, (Nairobi Law Africa) 2011], the Claimants’ case would have been successful, and the Respondent decided to pull the rag off the Claimants’ Claim. In that case, costs would have followed the event, in line with Section 27(1) of the Civil Procedure Act.

7. While this Tribunal encourages parties to settle claims out of court, this ought to be done without malice, and timeously. The Respondent’s actions smack of bad faith, having dillydallied with the reimbursement due to the Claimants and only prodded into action by the instant Claim. Whoever approaches equity must do so with clean hands, and the Respondent’s soiled hands are easily identifiable. It would seem that the Respondent was inviting the parties and especially the Interested Party to a wild goose chase; this strain of mischief must be dissuaded, strongly.

Section 27(1) of the Civil Procedure Act bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimants and the Interested Party are entitled thereto, and we thus so order.

The Claimants and the Interested Party are directed to file a Bill of Costs within 30 days hereof.

Mention to take further directions on 17. 2.2022.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 19. 11. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 19. 11. 2021

Ms. M. Mbeneka Member Signed 19. 11. 2021

Mr. Gitonga Kamiti Member Signed 19. 11. 2021

Mr. B. Akusala Member Signed 19. 11. 2021

Mr. P. Gichuki Member Signed 19. 11. 2021

Tribunal Clerk R. Leweri

Mwichigi for the Claimant.

Paul Maina for the Respondent

Moraa holding brief for Nyamweya for the Interested Party.

Hon. J. Mwatsama Deputy Chairperson Signed 19. 11. 2021