[2020] KECPT 73 (KLR)

REPUBLIC OF KENYA

IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. 141 OF 2017

LINUS LABANSON MURITHI...................................................1ST CLAIMANT

PETER OMONDI OKAL.............................................................2ND CLAIMANT

VERSUS

MWALIMU NATIONAL SACCO

SOCIETY LTD..............................................................................1ST RESPONDENT

JOSEPH MUSEE KULA............................................................2ND RESPONDENT

RULING

What is coming up for consideration and determination is the Claimant’s Application dated 24. 9.2019. It seeks, in the main, the following reliefs:

1. That the Tribunal to review and/or set aside the judgment delivered on 8. 1.2019;

2. That the Tribunal be pleased to issue a full and final judgment as prayed in the statement of claim; and

3. Costs.

The Application is supported by the grounds on its face and the Affidavit sworn by Linus Labanson Murithi on even date, that is, 24. 9.2019.

It is the Claimant’s case that the judgment delivered by the Tribunal, differently constituted, is tainted with illegality. That on 8. 1.2019, the Tribunal delivered judgment granting the 1st Respondent 45 days to file more documents proving its defence. That there is no way the 1st Respondent can lawfully comply with the direction because;

1. They had informed the Tribunal that they were not filing more documents;

2. The window for filing documents had closed;

3. The said documents, if produced, would be fictitious;

4. Any event, they have not filed documents within the 45 days directed by the Tribunal.

1st Respondent’s case

The 1st Respondent has opposed the Application by filing statement of Grounds of Opposition dated 11. 12. 2019 and a Replying Affidavit sworn by S.J. Saenyi on 16. 1.2020. Vide the said Grounds of Opposition the 1st Respondent contend thus:

i. That the Application, as filed, does not meet the condition precedent for review; and

ii. That the Application is an afterthought, fictitious and an abuse of court process.

Vide the Replying Affidavit, the 1st Respondent contend that it is true that that vide the judgment delivered on 8. 1.18, the Tribunal directed the 1st Respondent to file additional documents in defence of its case within 45 days. That between February, 2018 and June, 2018, the firm of Advocates on record for the 1st Respondent acquired new offices at 4th Avenue Towers thus necessitating relocation from its office.

That due to impending relocation, many of their files, either got misplaced, or erroneously marked as closed. That this current file was erroneously marked as closed. That it has taken long to sort out the files and subsequently tracing the file relating to the instant case. That on or about May, 2019, the said firm of Advocates sought to peruse the Tribunal’s file to ascertain its last position only to realize that judgment had already been entered and one of the orders was filing of more documents.

2nd Respondent’s Case

The 2nd Respondent did not participate in this Application in any way.

Written submissions

Vide the directions given on 11. 12. 2019, the Application was disposed of by way of written submissions. The Claimant’s filed theirs on 6. 3.2020 while the 1st Respondent did so on 2. 3.2020. We will consider the same while determining the issues presented by the Application below.

Issues of determination

We have framed the following issues for determination:

a. Whether the claimant has laid a proper basis to warrant the review of the judgment delivered on8. 1.2019;and

b. Who should bear the costs of the Application.

Review of Judgment

This Tribunal has jurisdiction to review and/or set aside judgment by dint of section 80 of the Civil Procedure Act (Cap 80) Laws of Kenya and Order 45 of the Civil Procedure Rules. Order 45 Rule 1 (a) provides in this regard as follows:

“ Any person considering himself aggrieved; as by a decree or order from which an Appeal is allowed, but from which no Appeal has been preferred and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record or for any sufficient reason, …may apply for a review of the judgment…”

Thus, for a party to succeed in an Application for review of a judgment, he/she has to demonstrate the existence of any of the following elements;

a. Discovery of new and important matter;

b. Mistake or error apparent on the face of the record; and

c. Sufficient reason.

Superior courts have sought to interpret the meaning of these principles as follows;

Discovery of new and important matter

In the case of Evans Bwire Vs Andrew Aginda, Civil Appeal No. 147 of 2006 , the Court of Appeal held thus;

“An Application for Review will only be allowed on strong grounds particularly if its effect will amount to re-opening the Application or case a fresh.”

Mistake or error apparent on the record

The court defined this in the case of Nyamogo & Nyamogo Vs Kogo [2001] East Africa 170as Follows;

“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un-definitiveness inherit in its very nature and it must be determined judicially or on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be number two (2) opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for Appeal.”

Sufficient reason

The court held, as regards to this, in the case of Jaden Mohamed Versus Charan Singh & Another thus;

“Any other sufficient reason for the purposes of review refers to the grounds analogous to the other two (for example error apparent on the face of the record and discovery of new important matter.”)

Taking into account the provisions of the law above and the pronouncements of the courts the question that arises is whether the Claimant has laid a basis for review of judgment. From our appreciation of the instant Application, it is manifest that the Claimant has taken issue with the Tribunal’s decision to allow the Respondent to file documents yet the 1st Respondent had indicated during pre-trial that they were not going to file any additional documents. The Claimant avers that the 1st Respondent cannot lawfully comply with the order as it had clearly indicated that it was not going to file further documents. Secondly, they claim that if the said documents are filed, the window for doing so will have already been closed.

At paragraph 3 of the Supporting Affidavit, the claimant avers thus;

“That I was and still….shocked that the Tribunal gave the 1st Respondents leeway to bring in more documents to prove their defence after hearing…”

At paragraph 4, of the said Affidavit the 1st Claimant avers thus;

“That I have been informed by our Advocates, which information I verily believe to be true and correct, …..such an act is extremely irregular and illegal…..”

We have perused the judgment delivered on 8. 1.2018. We note that the Tribunal delivered judgment on merit. It considered the pleadings filed and the evidence adduced by both parties. Whilst in the process of making its final orders, the Tribunal noted that the exact date of default was not disclosed by the parties, both in their documents and evidence. At paragraph 17 of the Judgment, the Tribunal held thus;

“ We have seen the Affidavit filed on 17. 5.2017 where at paragraph 5 the 1st Respondent states that the 2nd Respondent defaulted “beginning of 2012. ” This does not state which month of 2012 this was. The society must have calculated interest from a specific date. In the evidence adduced by both sides. We were not told how much remained unpaid at the time of default. The figure, would have helped the Tribunal to determine how much was payable by the guarantors after the shares and deposits were attached. The burden of adducing this evidence fell with the 1st Respondent as the custodian of records. This lack of information has left us in a situation where we cannot make final orders. It is our view that the 1st Respondent needs to disclose the figures mentioned above. After taking into these accounts, the matter should be mentioned before the Tribunal for final orders”

Contrary to the contention that the 1st Respondent had been granted a window to file additional documents to strengthen its defence, our understanding of the orders of the Tribunal is that in the midst of the evidence tendered by both parties, there is not enough material available to enable it determine fully the issues in controversy. It is on this basis that it called for additional documents to be availed by the 1st Respondent, which is the custodian of the said documents. Can this decision of the Tribunal be said to be an error apparent on the face of the record? Our answer is a resounding NO. The Tribunal fully considered the material before it and arrived at this finding.

Further, we find that the claimants have not presented “sufficient reasons” to warrant a review of the said judgment.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 24. 9.2019 and hereby dismiss it with costs to the 1st Respondent.

Read and delivered in accordance with the guidelines issued by the Hon. Chief Justice on 15. 3.2020, this 9thday of April, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman Signed 9. 4.2020

Hon. F. Terer Deputy Chairman Signed 9. 4.2020

P. Gichuki Member Signed 9. 4.2020