[2019] KECPT 34 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT KISUMU

TRIBUNAL CASE NO. 146 OF 2018

LYDIA ATIENO WESONGA.............................................................CLAIMANT

VERSUS

TARAJI SACCO SOCIETY LIMITED........................................RESPONDENT

RULING

What is before us for consideration and determination is the Respondent’s application dated 3. 9.2019. it seeks , in the main, an order that the Tribunal be pleased to vary, set aside and/or review the orders made on 15. 8.19.

The application is supported by the grounds on its face and the supporting affidavit of Emmanuel Stephen Oluoch sworn on even date(3. 9.19)

The claimant has opposed the application by filing a Replying Affidavit sworn by herself on 7. 10. 19.

Directions on filing of written submissions.

On 8. 10. 19, the Tribunal directed parties to file and serve written submissions, with the Respondent going first. The Respondent filed its submissions on 23. 10. 19 while the claimant has not.

Respondent’s case

It is the Respondent’s case that the Ruling delivered by the Honorable Tribunal on 15. 8.19 was arrived at out of an error apparent on the face of the record. It avers that the Tribunal did not take into account the contents of its affidavit of means sworn by Emmanuel Stephen Oluoch on 30. 5.19. It avers that the said affidavit was filed on 6. 6.19. It thus contend that the orders made vide the said ruling directing it to pay a monthly sum of Kshs.50,000/= towards settlement of the decretal amount were arrived at without taking into account the contents of the said Affidavit of means.

The Respondent contend that it is financially constrained and that it cannot raise the sum of Kshs.50,000/= ordered by the Tribunal. It contend that the Sacco is financially strapped as it has been overburdened by the many claims made by its other members. It avers that owing to its current financial position its able to raise a monthly sum of Kshs.50,000/=.

Claimant’s case

Vide her Replying Affidavit, the claimant has opposed the application on grounds that the same lacks merit as the Respondent had, prior, to delivery of the impugned ruling, made a similar offer of Kshs.8000/= She avers that if the respondent is unable to raise the monthly sum of Kshs.50,000/=, then it should be wound up.

Further, she avers that the respondent did not attach the various bank accounts of the Sacco to show its financial position. It is thus her prayer that the instant application be dismissed.

Issues for determination

The Respondent’s application dated 3. 9.19 has raised the following issues for determination;

(a) Whether the Respondent has laid a proper basis to warrant a review and/or variation of the ruling delivered on 15. 8.19; and

(b) What orders commend itself in the circumstances.

Review

This Tribunal has jurisdiction to review its orders by dint of section 80 of the Civil Procedure Act (cap 21) Laws of Kenya and order 45 Rule (1) of the Civil Procedure Rules. Section 80 provides as follows:

“Any person who considers himself aggrieved – by a decree or orders from which an appeal is allowed by this Act, but from which no appeal has been preferred, may apply for a review of judgment to the court which passed the decree or made the order; and the court may make such thereon as it thinks fit”.

Likewise , order 45 Rule 1 (a) provides that;

“Any person considering himself aggrieved – (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, and who from 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 other sufficient reason….may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay”

From the above provision, it is trite that a party can move court for review of judgment and/or order based on the following grounds:

(a) Upon discovery of new and important matter;

(b) When the decree or order was made as a result of some mistake or error apparent on the face of the record;

(c) For sufficient reason.

Applying these principles to the facts of this case the question that we ask ourselves is whether the instant application meets the threshold set out in these provisions. To answer this question satisfactorily, we set out the grave man in the application.

From our appreciation of the grounds in its support and the supporting affidavit of Emmanuel Stephen Oluoch, It is apparent that the Respondent is aggrieved by the fact that the Ruling of 15. 8.19 was delivered without the Tribunal taking into account the averments contained in his affidavit of means sworn on 30. 5.19. It avers that the said Affidavit had been filed prior to delivery of the Ruling. He has annexed the said Affidavit of means as “ESO-1”.

Further, the Respondent claim that it is not able to implement the award of Kshs.50,000/= made vide the Ruling delivered on 15. 8.19 as it is struggling financially. It avers that it is currently settling many claims filed by its members and that for it to run smoothly, the figure of Kshs.50,000/= ought to be reviewed downwards to Kshs.8000/= per month.

We have considered the application, the said grounds in its support, the supporting affidavit of Emmanuel Stephen Oluoch, the Replying Affidavit of the claimant and the written submissions of the Respondent filed on 23. 10. 19.

Further, we have perused and considered the Respondent’s Affidavit of means sworn on 30. 5.19. It is manifest that the instant claim is for refund of shares. It is also trite that the claimant has moved court and secured judgment against the Respondent.

Ipso facto, she is entitled to fully enjoy the fruits of her judgment.

However, owing to the circumstances of the case, the Tribunal on 15. 8.19 deemed it fit to direct that the said award be defrayed by way of monthly installments of Kshs.50,000/=. The Respondent wants this figure to be scaled down further to Kshs.8000/= per month.

The Tribunal has taken into account the Respondent’s financial position and note that the initial order for payment of Kshs.50,000/= may cause financial strain to the Respondent. This is more so owing to the fact that it has many pending claims of refunds to other members as demonstrated in the list annexed therein.

We thus deem it that the interest of justice will be served if the earlier amount is reviewed downwards to Kshs. 25,000/=. The Respondent to pay this figure (Kshs.25,000/=) until it fully settles the decretal amount.

Since the current application has caused unnecessary expense on the part of the claimant, we order the Respondent to meet the cost of the application assessed at that sum of Kshs.5000/= orders accordingly.

Payments to be made on the 30th day of every succeeding month. Payment to take effect on 30. 12. 19.

Ruling read and delivered in open court, this 6th day of December 2019

In the presence of :

Claimant : Present

Respondent : Present

Court Assistant : Charles Maina

Hon.B.Kimemia - Chairman:

Signed

Hon.F. Terer - Deputy Chairman:

Signed

P.Swanya - Member:

Signed