[2024] KECPT 894 (KLR)

Macharia & another v Linkana Route 114/115 Matatu Sacco Limited (Tribunal Case 502 of 2017) [2024] KECPT 894 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 894 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 502 of 2017

J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

May 30, 2024

Between

Hezron Macharia & another & another

Claimant

and

Linkana Route 114/115 Matatu Sacco Limited

Respondent

Judgment

Facts of the Case. 1. This case go way back to 28th July, 2017 when a report was made to the Respondent’s Management Office that two vehicles registration KCF 641D and KCC 129D owned by the Claimants had blocked the loading bay at Limuru Matatu Terminus, thereby making it impossible for other vehicle to pick passengers.

2. When the report was made, two officials of the Respondent Society, Peter Muiruri Ndirangu and Peter Kiongo Karinge reached out to the Claimants to have them remove the vehicles, which they didn’t leading to the matter being reported to the Administrative Police post at Kirathimo – Limuru who tried intervening and when the vehicles were still to removed, they called a breakdown which towed the two vehicles to Tigoni Police Station.

3. According to the Respondent’s, the action by the Claimants of blocking the loading bay caused a huge traffic swirl up within the stage necessitating the calling of the police to come and intervene.

4. The Claimants on their end Claim that without any reasonable grounds, the Respondents investigated the unlawful impounding of their vehicles which took 45 days at the police station causing them to lose earnings of approximately Kshs. 7,000/= per day per vehicle.

5. At the hearing, the Claimant’s position was that the parking bay was wide enough and their vehicles did not prevent other vehicles from packing passengers neither did their action cause any traffic swirl up.

6. We have considered the proceedings including the ruling on the Notice of Motion Application and the only question remaining for determination is as to whether the Claimants should be granted the prayers and reliefs they are seeking.

Issue One Should the Claimants be granted the prayers and reliefs they are seeking? 7. For the avoidance of doubt, the Claimants are seeking reliefs for loss of earnings from 28th July, 2017 till when the vehicles were released. The Claimants have computed that cost at Kshs. 630,000/= (Kshs. 7,000/= ×45 days ×2 vehicles)The starting point is to begin by determining whether the Respondent is to blame for the detention of the vehicles leading to the loss of earnings, or in the alternative whether the Claimants were responsible for their own misfortune and as such cannot gain from what they caused.

8. In the law of causation, a party can only be responsible or liable for a loss if their acts are the sole effective cause of another person’s loss. That the loss claimed, must be so connected with an act or actions of a party to the extent that t can be said that it was the material cause of the loss.

9. In this particular case this Tribunal has to ask itself several questions to answer or find out whether the Claimants are responsible for their own misfortunes. Some of the questions include: If the Claimants had obeyed the direct orders from the police to remove the two vehicles, would they have been detained.

Were the Claimants acting in breach of the lawful orders?

Were the Claimants aware of the consequences of breaching traffic regulations.

Whose fault was it that the vehicles ended up being detained.

What would have happened if the Claimants did not neglect the order to remove the vehicles as they had been ordered by the police?

10. Causation is a matter of fact to be determined by common sense in most case. In this particular case, the Tribunal position is that the Claimants foresaw the likelihood of consequences of their actions refusing to obey lawful orders and as such they were responsible or are liable for their vehicles being detained. If they would have heeded the appeal to remove their vehicles, the two vehicles would not have been detained. The Claimants were in breach of lawful orders and to ask this Tribunal to find in their favor is to ask this Tribunal to let them gain from disobeying lawful orders. It is our unanimous position that it is not in the interest of justice and public policy to do that. Actions have consequences that we must learn to live with.

Final orders:i.The Statement of Claim dated 14th August, 2017 is found to be without merit and fails.ii.Parties to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 5.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 30. 5.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 30. 5.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 30. 5.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 30. 5.2024Hon. Paul Aol - Member - Signed - 30. 5.2024Tribunal Clerk - JonahEchon advocate holding brief for Mwangi Advocate for the Respondent.S.M. Chege advocate for the Claimant- No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 5.2024