Maseno University Sacco Society Ltd v Wesonga (Tribunal Case 271 of 2019) [2026] KECOPT 269 (KLR) (24 June 2026) (Ruling)

Maseno University Sacco Society Ltd v Wesonga (Tribunal Case 271 of 2019) [2026] KECOPT 269 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KECOPT 269 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 271 of 2019 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 24, 2026 Between Maseno University Sacco Society Limited Claimant and Constantine Wesonga Respondent Ruling 1.This ruling dispenses with the notice of preliminary objection dated 26th May 2026. In the notice of Preliminary objection, the Applicant raises an objection to the Respondent’s/Judgement debtor’s Application dated 21st May 2026, on the following grounds:a.The Honourable Court is functus officio in the matter having pronounced itself by the judgement entered on 27th April 2023.b.The High Court in its ruling for review in HCCA E335 of 2023 on 9th March 2026 by A.C Mrima J, overturned the decision of Hon. J.K Ng’arng’ar and ordered that; “Consequently, the judgement of the Co-operative Tribunal on 27th April, 2023 in Tribunal case No. 272 of 2019, which entered summary judgement in favour of the Applicant, Maseno University Sacco Society Limited, is hereby reinstated and the applicant is at liberty to levy execution.” 2.The objection is premised on the grounds on its face which are inter alia that: This Tribunal is Functus Officio having conclusively decided the matter, and that it lacks jurisdiction to entertain the said application. 3.The brief background of this matter is that this Tribunal entered summary judgment against the Respondent who then successfully appealed and the judgement of this Tribunal was set aside. The Claimant then filed an application for review, which was upheld and the entire judgement of Justice Ng’arng’ar was set aside and the judgement of the Tribunal upheld. The Respondent’s claim is that they have appealed the same to the Court of Appeal via Civil Appeal No. 227 of 2026, and they have come to this Tribunal to seek a stay of execution of the judgement pending the determination of the Appeal. 4.The matter was canvased by way of written submissions and both parties filed their submissions. 5.According to the Claimants, once the High Court upheld the decision of this Tribunal, this tribunal cannot be called upon to vary or stay the execution which has been directed by the High Court as this Tribunal is bound by the doctrine of stare decisis. Further, that this Tribunal exhausted its jurisdiction once it pronounced itself by entering a summary judgement, and cannot be procedurally be called upon by the judgement debtor who has lost the appeal in the High Court to purport to rehear the case afresh. They relied on the case of Telkom Kenya Ltd v Ochanda (Suing on his own behalf ad on behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR) and urged this Tribunal to put down its tools on the matter. 6.The Respondents on the other hand, opposes the Claimant’s application and submits that the same is misconceived both in law and fact, that it is premature and devoid of merit. Is their submission that the functus officio doctrine prevents a court from revisiting the merits of a decision it had conclusively determined, and that their Notice of Motion Application dated 21st May 2026 does not seek to reopen the judgement. They submit that execution proceedings are distinct and consequential proceedings arising after the judgement, and that the warrants sought to be stayed were issued by the Tribunal, and that the proclamation of attachment complained of were undertaken pursuant to the authority donated by those warrants. Analysis 7.The question before this tribunal is whether the Preliminary Objection is merited. There are two main issues raised in the Preliminary Objection. 8.The first issue is whether Tribunal is functus officio having conclusively determined the matter 27th April 2023, and is therefore barred from entertaining any further proceedings. 9.The prayers that the Applicant seeks in the notice of motion dated 21st May 2026 is for this Tribunal to stay the warrants of attachment it issued on 12th May 2026, and the proclamation of attachment, repossession distraint of movable property dated 20th May 2026 pending the determination of civil appeal No. 227 of 2026. 10.The question before this Tribunal, therefore, is not the powers of this Tribunal in the execution of its orders and decrees, as the applicant indeed applied and obtained the same. The question is whether, once it has issued the same, it then becomes functus officio to staying the same pending an appeal of the High Court’s decision to the Court of Appeal. 11.Order 42 Rule 6 of the Civil Procedure Rules provide that 6.Stay in case of appeal [Order 42, rule 6] (1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 12.From the above, it is clear that the Court that a party should approach for a stay pending appeal is the court appealed from, which if denied, the court appealed to. In this case, the Respondent is appealing the matter to the court of Appeal from the High Court. We, therefore, have no jurisdiction to order a stay, being neither the court appealed from nor the court appealed to. 13.In the upshot of the foregoing, we find merit in the Preliminary Objection dated 26th May 2026 and hereby down our tools regarding the Respondent’s Notice of Motion Application dated 21st May 2026. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF JUNE, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 24/6/2026HON. BEATRICE SAWE - MEMBER SIGNED 24/6/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 24/6/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 24/6/2026HON. P. AOL - MEMBER SIGNED 24/6/2026Court Assistant - MutaiNo appearance by parties.Ruling delivered in absence of parties.