[2019] KECPT 67 (KLR)
The tribunal found that the High Court had already issued binding and mandatory orders regarding the sums in dispute, including the interest claimed by the applicant. The High Court had entered judgment on admission for part of the claim, ordered the balance to proceed to trial, and directed that deposited funds...
Source-derived case information.
- Citation
- [2019] KECPT 67 (KLR)
- Parties
- Applicant: Maurice Otieno Olunja; Respondent: Kenpipe Cooperative Savings and Credit Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 61B of 2013
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Striking Out Pleadings, Enforcement of High Court Orders, Refund of Interest, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Otieno Olunja
Applicant
Kenpipe Cooperative Savings and Credit Society Limited
Respondent
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the statement of claim dated 6.3.13 should be struck out.
- 2 Whether the interest of KES 5,879.65 charged and paid should be refunded to the applicant.
- 3 Whether the tribunal can entertain the application in light of binding High Court orders.
Ratio Decidendi
The tribunal found that the High Court had already issued binding and mandatory orders regarding the sums in dispute, including the interest claimed by the applicant. The High Court had entered judgment on admission for part of the claim, ordered the balance to proceed to trial, and directed that deposited funds remain untouched until finalization of the suit. The tribunal held that it was legally bound to comply with these orders and could not entertain an application that sought to revisit or undermine them. The application was therefore found to be misplaced, lacking in merit, and an attempt to divert the course set by the High Court. Accordingly, the tribunal dismissed the application...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 4.3.2019 is dismissed in its entirety.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.61B OF 2013
MAURICE OTIENO OLUNJA................................... CLAIMANT
VERSUS
KENPIPE COOPERATIVE SAVINGS AND CREDIT
SOCIETY LIMITED................................................RESPONDENT
RULING
The Matter for determination is a Notice of Motion application dated 4. 3.2019 seeking the following orders:-
1. Thatthe statement of claim dated 6. 3.13 and filed by the respondent be struck out.
2. Thatthe sum of Kenya shillings 5879. 65/= charged as interest from 30. 9.2010 to 7. 8.2012 and paid to the respondent be refunded to the applicant forthwith.
3. That cost of the application and the claim be paid to the applicant.
Based on the grounds on the face of the application and supported by affidavit of the MORIS OTIENO 1st respondent herein. The same is opposed by the replying affidavit of KENNETH KINGETHE finance manager of the claimant filed on 2. 7.19.
This application was canvassed by way of written submissions the applicant filed their written submission on 22. 7.19 while claimant filed their written submission on 1. 8.19.
We have read the pleadings and the proceedings on record and note the circumstances and the history of the file. We note that the suit was for Kshs.1088458. 42/=vide the statement of claim dated 6. 3.13 we have also noted the ruling dated 25. 10. 13 in which the application dated 3. 7.13 was allowed thereby striking out the respondents’ defence.
That the respondent filed an appeal in the High Court against the said ruling which appeal entered judgment on admission for Kshs.498638/= plus interest at court rates. The Judge thereafter directed that the balance thereof to go for trial and the money deposited in the joint names of the counsel’s shall so remain deposited until the suit is finalized.
Looking at these orders of the High Court, we find that these orders are mandatory and legally binding upon this tribunal and the tribunal must accordingly execute the orders issued by the High Court. The parties having been ordered to canvass the remaining amount in trial we are lost and wonder why the applicant decided the file an application for the tribunal to decide on interest charged as per the statement of claim yet this contested amount were ordered to be determined by way of trial. In the circumstances, we find the Notice of motion dated 4. 3.2019 is misplaced , lacks merit and purports to divert the binding orders issued by the High Court. We therefore dismiss this application in its entirely, with costs in the cause, and in compliance with the High Court order dated 29. 11. 18, accordingly order the parties to fix the matter for directions for hearing.
Read and delivered in open court, this 7th of November 2019
In the presence of:
Claimant:Wangui holding brief for Milimo
Respondent:Otieno advocate
Court Assistant:Leweri and Buluma
B. Kimemia - Chairman-signed
R. Mwambura – Member-signed
P. Swanya - Member-signed