[2023] KECPT 1099 (KLR)

Maseno University Sacco Society Ltd v Omondi (Tribunal Case 275 of 2019) [2023] KECPT 1099 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1099 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 275 of 2019

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

November 30, 2023

Between

Maseno University Sacco Society Ltd

Claimant

and

Pius Ouma Omondi

Respondent

Ruling

1. The Application for determination is a Notice of Motion dated 11/7/2023 filed on 12/7/2023 brought under Section 1A, 1B and 3A Civil Procedure Act (Cap 21) L.O.K., Order 1Rule 15, Order 43 Rule 1 & 6, Order 51 Rule 1 of the Civil Procedure Rules 2010. The Application seeks for orders;1. Spent.2. That the Honourable court be pleased to stay proceeding and/ or any further warrant of committal of the Respondent/ Judgement debtor to Civil jail pending the inter-parties hearing and determination of this Application.3. That the Honourable Court be pleased to Review, Vary, and/ or set aside Ruling and all consequential orders of 1st November, 2022, 17th November, 2022 and 6th February, 2023. 4.That the Honourable Court be pleased to grant the Respondent/ Judgement debtor to issue third party proceedings against Rapid Equity Limited.5. That the costs of this Application be in the cause.

2. As supported by Affidavit of Pius Ouma Omondi sworn on 11/7/2023 where he avers he recently discovered new and compelling evidence from Claimant’s case filed in High Court Case 4 of 2018 that is, Maseno University & Credit Co-operative v Stima Savings & Credit Co-operative [2020]eKLR , which Judgement is meant that from it the Applicant learnt:Paragraph 6 and 7 of the Supporting Affidavit:“That I know of my knowledge from my reading of the judgment by Hon. Lady Justice Grace L. Nzioka at paragraph 15, the Honourable Judge observed that the Appellant (Claimant in the case herein) hired rapid Equity Limited to help it source for the Purchaser of its shares and paid a sum of ksh 39,600,000/= for the agency services and ksh 5,832,110/= as commission and taxes.That I know of my knowledge the said sum of ksh 39,600,000/= for the agency services and ksh 5,832,110/= as commission and taxes are the same amounts which are in dispute in the case herein since the Claimant/ Judgment Creditor surcharged to all the Officials of the Claimant’s Sacco and Respondent/Judgment Debtor was surcharge to the tune of ksh 5,719,125/=.”As such, the Applicant wishes with the new discovery that Rapid Equity Limited be joined to the current case vide 3rd party proceedings.The Applicant prays for there to be stay of proceedings and any further Warrant or Committal of Respondent to Civil jail pending determination of this Application

3. The Claimant/ Judgement Creditor filed an Replying Affidavit being sworn by Professor Andrew Oduor Sworn on 6/11/2023 opposing the Application and he confirmed the Applicant was Surcharged by Commissioner for Co-operatives for stealing, embezzling and misappropriation of funds belonging to Maseno University Sacco.With no Appeal in regard to the Surcharge, the 2nd Respondent moved the Tribunal for Summary Judgement which was entered as per the Surcharge Order.The Applicant failed to make repayment and as such was committed to civil jail on several occasions. Further, the Applicant’s Application has been overtaken by events. Also the Judgement Creditor states High Court Civil Appeal 4 of 2018 involves different parties not related to the current case and as such there is no nexus.

4. Parties filed Written Submissions with Applicant filing written Submissions dated 15/11/2023 and Judgement Creditor filing Written Submissions dated 15/11/2023. Having looked into the merits of the Application, response and Written submissions by the parties, the issues for determination are;Issue one.Whether we can vary/ review/ set aside the ruling?Issue two.Whether we can grant leave to institute 3rd party proceedings against Rapid Equity Limited?

Issue one. Whether the orders of 12/7/2023 can be reviewed/ vary and set aside towards recommitting the Respondent/ Judgement debtor to civil jail?Order 44, Order 45(1) Civil Procedure Rules 2010 provides for;“44. (1)All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree: Provided that the following shall not be liable to attachment or sale –i.the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor and of his wife and children, and those personal ornaments from which, in accordance with religious usage, a woman cannot be parted;(ii)the tools and implements of a person necessary for the performance by him of his trade or profession;(iii)where the judgment-debtor is an agriculturalist –(a)the first ten thousand shillings in value of his livestock, if any; and(b)the first five thousand shillings in value of all implements, tools, utensils, plant and machinery used in connection with stock or dairy farming or in the production of crops or plants; and(c)the first one thousand shillings in value of agricultural produce necessary to enable him to earn his livelihood;(iv)books of accounts;(v)a right to sue in damages;(vi)a right of personal service;(vii)stipends and gratuities allowed to pensioners of the Government, or payable out of a service family pension fund notified in the Gazette by the Minister, and political pensions;(viii)two thirds of the salary of public officer or other person in employment; Property liable to attachment and sale in execution of a decree. 1 of 1981, s. 25. www.kenyalaw.org 24 Cap. 21 Civil Procedure Rev. 2009](ix)a contingent or possible right or interest, including an expectancy of succession by survivorship;(x)a right of future maintenance;(xi)any fund or allowance declared by law to be exempt from attachment and sale in execution of a decree.(2)Nothing in this section shall affect the provisions of the Armed Forces Act or of any similar law for the time being in force.45. (1)No person in executing any process under this Act directing or authorizing seizure of movable property shall enter any dwellinghouse after sunset and before sunrise”.In High Court Civil Appeal; E005 of 2021 Evans Ouma Omondi and another v David Oginga. The Court stated one must have sufficient reason to review, vary and or set aside.

5. The Applicant in this case has not shown any sufficient reason why the committal orders should be set aside.“…Section 80 Civil Procedure Act (Cap 21) and Orders 45 Rule 1 Civil Procedure Rules, the court may review its decision inter alia on account of some mistakes or error apparent on the face of the received or for any other sufficient reason…”No reason has been placed before the Tribunal to cause us to review the Ruling of 12/7/2023. Be that as it may, the Ruling of 12/7/2023 culminated from orders on 6/2/2023. The Applicant has served his term by now and thus we don’t see anything to be reviewed or varied unless another Application for committal is filed or done by the Judgement/Creditor.

Issue two. Whether leave can be granted to the Applicant to institute 3rd party proceedings?Before we look into that issue, it is important to appreciate the current case as it has been decided to its logical conclusion. We then ask ourselves, can the 3rd party proceedings then be brought in at this stage?In the case being re-opened and no such Application has been made?

6. In the case of Interactive Advertising Limited and another v Equity Bank Limited & 3 others cited alongside Kagwa v Costa [1963] EA 213 and Sango Bay Limited v Dresdier Bank Ltd [1971] EA 307 it was said;“Before the court can exercise its discretion to issue 3rd party notice, it has to evaluate allegations of the Plaintiff in terms of his legal claim to the relief he is seeking. The court also has to evaluate the Defendant’s allegations against the 3rd party and has to be satisfied that the substance of each claim is the same and that there is a link between all the claims before issuing the notice”There is no clear link on our view between the parties as mentioned in High Court Civil Appeal no 4 of 2018 Maseno University and Credit Co-operative Society Limited v Stima Savings and Credit Co-operative and the current case.Further Order 1 Rule 1B Civil Procedure Rules 2010 provides:“1B.(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims –(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology”

7. Is this not an afterthought by the Applicant as the referenced High Court matter had long been determined?At this late hour after judgement and Notice to Show Cause has been taken out can a 3rd party be introduced and make a difference in Applicant’s position?It is our view; 3rd party proceedings cannot be instituted at this hour against Rapid Equity Limited when there is already a judgement. And further no Application to set aside the Judgement has been made and/or Application to re-open the case.

Upshot.As such the Application dated 11/7/2023 is found to be without merit and dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahAriga advocate for Claimant/Decree HolderKoceyo advocate for Respondent/Judgment Debtor- No appearanceRuling as read out.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023