[2023] KECPT 1052 (KLR)

Miliki Credit and Savings Society Limited v Kimani; Kongai (Interested Party) (Tribunal Case 142 of 2016) [2023] KECPT 1052 (KLR) (Civ) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1052 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 142 of 2016

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

November 30, 2023

(Coram: Hon.B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Between

Miliki Credit and Savings Society Limited

Claimant

and

Hilton Munga Kimani

Respondent

and

Davic Kiplangat Kongai also known as Bishop Neofitos Kongai

Interested Party

Ruling

1. In this case, an application dated December 31, 2015 was filed by the Claimants on 4/4/2016 which was seeking for Judgement against the Respondent for:a.Payment of Kshs. 289,650. 17. b.Accrued interest.To support the claim, the claimants filed a witness statement , a verifying affidavit, a list of documents all dated 31/12/2015 together with a photocopy of loan application agreement form dated 7/01/2012. An affidavit of service dated 5/5/2016 is in the Tribunal's file that service of the documents was served upon the Respondent on the same date.

2. When the Respondent failed to enter appearance and failed to file a Defence, the Claimants moved the Tribunal under Order 10 Rule 4 through an Application dated 12/7/2016 filed on 13/7/2016 and requested for judgement.On 21/7/2016, the Tribunal enters judgement as follows.“Judgement is hereby entered in favor of the Claimant against the Respondent in the sum of Kshs. 289,650. 17 plus costs and interest."A decree dated October 21, 2016 was extracted after a notice of entry on the Judgement Application was served upon the Respondent. When this did not elicit any response, the Claimants made an Application for attachment of the Respondent's salary which was issued on 12/5/2017, and re-issued on 17/8/2017.

3. Again, the Respondent did not response which prompted the Claimant to write a letter dated August 2, 2019 to the Tribunal and request warrants of attachment to be re-issued in order to enable them to serve the Respondent's employer.The Tribunal issued the warrants notice on 9/8/20119 which was served and received by one Jason Saka on 22/8/2019. In follow-up, the Advocate for the claimants letters dated 2/9/2019, and 9/11/2019 wrote to the Orthodox archbishopric Diocese of Nyeri to obey the Tribunal's order. Another letter dated 19/3/2021 from the Claimant Advocate addressed to the Archbishopric on contempt proceedings triggered a Notice of Motion Application dated 23/4/2023 from the Advocate of H. G. Bishop Neophytos Kong’ai of the Dioceses of Nyeri.

4. Earlier, the Tribunal had issued a ruling on 23/3/2023 in response to a Notice of Motion dated 28/10/2022 to the effect that the Application was without merit and was dismissed with no orders as to costs.

5. Resulting from the ruling, the Archbishopric filed another notice of motion dated 24/3/2023 and anchored it under section 80 of the Civil Procedure Act, order 45 rule 1(a)and 2(1) of the Civil Procedure Rules and all other enabling provisions and sought for the following orders.i.The tribunal to review, uplift or set aside the orders made on 23/3/2023. ii.The interested party's application dated 28/10/2023 be allowed.iii.Costs be provided.In support of the above notice of motion, the Interested party filed a Supporting Affidavit on 31/3/2023 sworn by Advocate Christine Githii who stated that the Respondent in the instant suit has never been an employee of Orthodox Archbishopric of Kenya and Irinoupolis Nyeri Diocese in any capacity as earlier stated in paragraph 2,4 & 5of Affidavit by David Kiplagat Kongai also Known as Bishop Neofitos Kongai which read as follows.Paragraph 2 "That since 24/11/2015 to date I have served in Bishop Neofitos Kong’ai at the Orthodox Archbishopric of Kenya and Irinoupolis heading the Diocese of Nyeri, Mt Kenya , a Diocese also established on 24/4/2014. "Paragraph 4 "That in my duration as head of the diocese, the Respondent has not been employed by my diocese in any capacity."Paragraph 5 "That I am astonished to be informed of the Orders made on 9/8/2019 because the Respondent is not on my payroll and the said orders can simply not be executed."

6. Noting that there has never been any defence or any response from the Respondent since the inception of this case in 2016 and even when he was served with a decree, we will not belabour to discuss why the previous Advocate for the claimant opted to seek to serve the Archbishopric of Kenya Irinoupolis without first satisfying himself that the said judgement-debtor was an employee receiving salary or allowances from the Orthodox diocese of Nyeri.

7. Needless to say, the notice of motion dated 24/3/2023 and the supporting affidavit Sworn by Christine Githii - the Advocate for the interested party together with all the Supporting documents that had previously been annexed with the supporting documents that had previously been annexed with the supporting affidavit of David Kiplagat Kongai and filed on 29/3/2023 all pointed out to a mistake or apparent on the face of the record. The mistake/error is that the respondent is not an employee of the interested party accordingly, we take cognizance of order 45 rule 1 which provides as follows:“Any persons considering himself aggrieved and who from the discovery of new 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 order made, or an account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of Judgement to the Court which passed the decree or made the order without undue delay."

8. The Bishop Neofitos Kongai in his supporting affidavit filed on 29/3/2023 stated that the Orthodox archbishopric of Kenya, Nyeri Diocese was established in 2014 and provided evidence of a list of Priest who serve in Nyeri Diocese and Mt. Kenya Region and the payroll of which the respondent's name is not among them. This explains why the Bishop made the application to the tribunal to review, uplift or set-aside its orders made on 23/3/2023.

9. We are alive to the fact that Courts/Tribunals have the discretionary power to review a decree or order with the main aim that justice should prevail either way all the time. We place our reliance on this on the case of Tree Shade Motor Ltd v D.T. Dobie Co. Ltd CA 38 of 1998, where the court held that such discretion of the court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.In our view of the fact that injustice would be visited upon the interested party who was not a party to the proceedings/suit from the beginning and has no relationship (employer - employee) with the Respondent. This tribunal hereby vacate the orders rendered in its ruling dated 23/3/2023.

10. Further, we set aside/ withdraw the order directing the Interested party to withhold the Sum of Kshs. 343,917. 68/= from the salary or allowance of Hilton Munga Kimani (the Respondent) in a monthly instalment of Kshs. 3,300/= as served upon the Archbishopric of Kenya and Irinoupolis on 22/8/2019.

11. For the record, the Co-operative Tribunal adjudicate over Cooperative matters as provided under section 76 (1) of the Cooperatives Act cap 490. Since the orthodox diocese of Nyeri/ Mt. Kenya Region is not registered as a Cooperative, neither is the archbishop a member of the Claimant, we lack Jurisdiction to deal with this matter in which the interested party is not defined under Section 76(1)(a) of the Cooperatives Act which provide:If any dispute concerning the business of a Cooperative Society arising;a)Among members, past members and persons claiming through members past members and deceased members”.The upshot of this analysis is that we order as follows:a.The orders served upon the Orthodox Archbishopric of Kenya - Nyeri Diocese on 22/8/2019 is hereby set aside and vacated.b.the Tribunal lacks jurisdiction to determine a matter which is beyond its mandate.c.No orders as to 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 JONAHMS. WATIRI ADVOCATE HOLDING BRIEF FOR MS. GITHII FOR THE INTERESTED PARTY.MILIKI SAVINGS – NO APPEARANCE.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023