[2020] KECPT 105 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT MOMBASA

TRIBUNAL CASE NO. 338 OF 2017

MOHAMED SHEIKHDINI & 7 OTHERS..................................CLAIMANTS

VERSUS

VIPINGO SACCO SOCIETY LIMITED....................................RESPONDENT

RULING

What is before us for consideration and determination is the Respondent’s Application dated 28. 8.2019. It seeks for the following orders.

1. The application be certified as urgent, service thereof be dispensed with and the same be heard ex-parte in the first instance.

2. Pending hearing and determination of this application, the Honourable Tribunal be pleased to stay the execution of its entire Judgment entered on 26. 7.2019 and the decree extracted on 2. 8.2019 ordering the Respondent to pay the claimants the decretal sum of Kshs.553,125/- plus costs of Kshs. 13,840/=.

3. The Honourable Tribunal be pleased to review its judgment entered on 26. 7.2019.

4. This Honorable Tribunal be pleased to permit the Respondent pay the decretal amount by monthly installment of Kshs.46,093. 75/= till payment in full.

5. The Respondent continues paying the sum of Kshs.46,093. 75/= per month with effect from 10th September 2019 and on the 10th day of each such month till payment in full.

6. Costs of the application.

The Application is supported by the grounds on its face and the Supporting Affidavits sworn by Weston Banda on the very date that is 28. 8.2019.

The gist of the Respondent’s Case is that it wants the Judgment to be reviewed as follows:

(a) That there be a proper stipulation of timelines for satisfaction of the decretal amount as it is incapable for it to satisfy it at once;

(b) That there be stipulated timeline, for distribution of accrued dividend, taking into account the operations of the posho mill and its future sustainability;

(c) Directions as to whom it should pay the accrued dividends, that is whether it should be the 8th claimant only or each shareholder of Vipingo Posho Mill.

(d) Orders and guidelines as to the formation and operations of interim committee and the management committee to facilitate efficient operations of the posho mill.

The Claimant has opposed the Application by filing a Replying Affidavit sworn by himself on 4. 10. 2019. Vide this Response, the claimant contend that the instant Application is an abuse of the court process. That while on the face of the application, the Respondent wants to be allowed to satisfy the judgment on installments, vide it’s supporting Affidavit, it’s disputing the judgment. That he is not opposed to the judgment being satisfied by way of installment.

The Claimant reiterated the above contentions vide his written submissions filed on 13. 1.2020. He specifically submits that he is agreeable for the decretal amount to be satisfied by way of monthly installments. He states as follows at paragraph 3 of the submissions;

“The main prayer is that the applicant be allowed to pay by installments. We have not objected to that prayer, it should be recorded as allowed by consent”

Further, he contends that the decretal amount should be paid to the Tribunal pending the sharing of dividends to shareholders.

Issues of determination

We have framed the following issues for determination:

(a) Whether the Respondent have laid a proper basis for review of the judgment delivered on 26. 7.2019.

(b) What orders are available in the circumstances.

Review of orders and/or judgment

We have jurisdiction to review judgment and/or orders by dint of section 80 of the Civil Procedure Act (Cap 21) of the Laws of Kenya, and Order 45 of the Civil Procedure Rules. In terms of these legal provisions, judgment can only be reviewed on the following grounds:

(a) Discovery of new and important matter;

(b) Mistake or error apparent on the face of the record; and

(c) Sufficient reason.

The question that arises is whether the Respondent has satisfied these principles. Our answer is a resounding NO! The Respondent’s Application is merely seeking leave to be allowed to settle the decretal amount by way of monthly installments of Kshs.46,093. 75. The claimant is not opposed to the said proposal. The upshot of this therefore is that our hands are tied and that the furthest we can do is to allow it on terms that the Respondent allowed to settle the decretal amount by way of monthly installments of Kshs.46,093. 75 until payment in full. The said installments to be paid on or before the 5th of every month beginning 5. 3.2020.

As regards to the other aspects of the application example distribution of dividends, ownership of Vipingo Posho Mill, and Management of the Respondent, we refer the Respondent to the Judgment delivered on 26. 7.2019.

Since the Respondent has unnecessarily filed the instant application, we condemn it to meet its costs.

Read and delivered in an open court this 26th day of February 2020

In the presence of ;-

Claimant : Sandra Kavanji holding brief for Kalumbo For claimant.

Respondent : Mohammed present

Court Assistant : Charles Maina

Hon. B. Kimemia - Chairman Signed

Hon. F. Terer - Deputy Chairman Signed

P. Swanya - Member Signed