[2021] KECPT 545 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.737 OF 2015

MOSES MWANZIA &4 OTHERS..........................................................CLAIMANTS

VERSUS

ROYAL HOUSING CO-OPERATIVE & 2 OTHERS.....................RESPONDENTS

RULING

The matter for determination is the Notice of Motion Application dated 7. 12. 2020 filed on 8. 12. 2020, seeking the following orders:

a.Spent

b.Spent

c.That there be a stay of execution of the judgment and decree of this Honorable court delivered on 3rd September 2020 pending the hearing and determination of the intended appeal.

d.That the time for filing an appeal against the judgment herein be extended by a further thirty (30) days.

e.Costs of this Application be provided.

The same is based on the grounds of the application and the supporting affidavit of Samuel Muigai deponed on 7. 12. 2020.

The Application is opposed vide the Replying Affidavit of Moses Mwanzia deponed on 6. 1.2021 filed on 6. 1.2021.

The Application was ordered to be dispensed by way of written submissions. The applicant filed their written submissions on 29. 1.2021 and the Respondent filed written submissions on 27. 1.2021.

The Applicant submitted that they were seeking stay of execution pending the hearing of an intended appeal. That they were not aware of the delivery of the judgment since no notice was issued. That there was no inordinate delay in seeking extension, there was procedural defects in mode of execution and there would be substantial loss. The both parties have filed extensive submissions which we have considered and there are the following issues for determination.

1. Whether the Tribunal is the proper avenue for the Application.

2. Whether the reliefs sought should be granted.

3. Who should bear the costs?

1. WHETHER THE TRIBUNAL IS THE PROPER AVENUE FOR THE APPLICATION.

The Applicant seeks leave to file an appeal out of time. That they got to know about the judgment on 3. 9.2020 when they were served with the decree. That no notice was issued for the delivery of the judgment. They relied on Andrew Kiplagat Chemaringo -vs- Paul Kipkorir Kibet [2018] eKLR where the principles were laid out as:

- Length of delay

- Reason of delay

- Chances of success of appeal

- Degree of prejudice.

The Applicant submitted that there was no inordinate delay in seeking extension of time. That the delay was significantly caused by suspension of operations of the Tribunal due to lack of funds. That the appeal stands high chances of success and no prejudice will be caused if the prayers are granted.

That the Claimant filed a Notice to Act in person extracted the decree and sought execution. That such notice ought to be effected with leave of court hence offends Order 9 Rule 9. That the decree is therefore void ab initio.

That the applicant intends to file an appeal in the High court and attachment of the Respondent’s assets would be prejudiced.

In the Response, the Claimant submitted that the application is misconceived since the next logical step was to file an appeal as provided under Section 81 Co-operative Societies Act. That the Tribunal is functus officio as outlined in Geoffrey M. Asanyo & 3 others -vs- Attorney General [2020]eKLR.

That the application is procedurally improper and an abuse of the process of the court. That the Claimant had the right to represent himself and therefore was entitled to make that choice.

We have carefully considered the submissions of the parties and not the following history of the matter.

- The initial judgment was entered on 8. 1.2019 and the Respondent was ordered to file within 21 days, the Statement of accounts.

- On 30. 4.2019, when the matter came up for mention, the Respondents had not complied.

- On 4. 6.2019, 4. 7.2019 the Respondent had still not complied.

- On 7. 8.2019, the Respondents filed the statement of accounts.

- On 17. 8.2020, the Respondents and Claimants appeared and a date of 3. 9.2020 for final orders were issued via email to the parties in compliance of the directives during the COVID-19 Pandemic. The said order is dated 3. 9.2020.

In the circumstance therefore, we note that Claimant was present and aware of the judgment date, and he Claimant was to issue of notice to Respondent.

We note that the Tribunal had issued proper notices to all litigants on its operations during the COVID- 19 pandemic and that the parties were sent the final orders via email.

We note that the Respondent however was aware of the matter when they filed the statement of account on 7. 8.2019 and thereafter 4 mentions notice was served for 6. 9.2019. There had been various interruptions in the Tribunal as a result of lack of funds. However, there were several orders issued for notices to issue to the Respondent in the matter. Its trite law and procedure that the parties must follow up on their matters as a matter of diligence. Owing to the COVID–19 pandemic, the parties were required to have continued check-ups online for their matters. That being said, then there would be a mute point to follow up on the issue of notices. This is because the Respondent in the first instance did not comply with the orders to file within 21 days and were therefore thereafter acting in contempt of the said orders. The Respondent by purporting non-compliance of notice service/issuance should first purge the non-compliance to the orders of the Tribunal, to file the statement of account within 21 days. Its trite law that parties must come with clean hands before imputing non –compliance by other parties. We note that the Respondents had been issued with several notices for compliance and dispute service, were not appearing before the Tribunal on various occasions. We are aware that all orders delivered during the COVID-19 pandemic were transmitted to the parties via email. There is no allegation or submission by the Respondent to the contrary.

On the issue of the Claimants representing themselves after the delivery of the judgment, we have noted Order 9 Rule 9 Civil Procedure Rule and we as the Tribunal under Rule 4 Co-operative Tribunal (Practice and Procedure) Rules deem this to be a technicality since the Claimants opted to represent themselves and thereafter sought leave to be represented by an advocate after judgment. The defect was therefore cured. We are not bent to locking out parties in a claim or not granting them an opportunity to be heard as a result of any technicalities which can be easily cured.

On the invocation of the jurisdiction of the Tribunal, we note the provisions of Section 81 Co-operative Societies Act as provided:-

“Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal, may within 30 days of such order, appeal against such order to the High Court, provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of 30 days...”

This Section 81 Co-operative Societies Act is very clear that any extension of time for appeal should be by the High Court. In the instant matter, we note that the Respondent therefore should have filed their application on extension of period for appeal in the High Court. This is enumerated in Geoffrey M. Asanyo & 3 others - vs- Attorney General [2020] eKLRwhere the Supreme Court held:

“ The [Principle] of (functus officio) is that once such a decision has been taken, it is (subject to any right of appeal to a superior body or functionary) final and conclusive.”

The procedure under Section 81 Co-operative Societies Act is that a party aggrieved by the decision of the Tribunal has a right of appeal to the High Court and it is the same High court that is vested with the jurisdiction to extend time to file such an appeal. We therefore find that the Application for the extension of time should have been made before the High Court. On the same breath then, the stay of execution pending the intended appeal is also pegged on the extension of time and such orders are within the jurisdiction of the High Court under Section 81 Co-operation Societies Act.

In this regard, having found inter-alia that the jurisdiction in the circumstances of the application should have been made before the High Court, then the other issues of delay, reason for delay and prejudice will not be discussed in this Ruling.

(ii) WHETHER THE RELIEFS SHOULD BE GRANTED.

As discussed earlier in issue (i) above, the reliefs sought by the Respondent/ Applicant cannot be granted. The proper forum for the reliefs sought is the High Court.

(iii) WHO SHOULD BEAR THE COSTS?

Costs follow the event. The Application having failed to have merit, the costs therefore should be paid to the successful party.

FINAL ORDERS

1. The Application dated 7. 12. 2020 filed on 8. 12. 2020 has no merits and is accordingly dismissed with costs.

RULING READ, SIGNED, DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF APRIL, 2021.

HON. B. KIMEMIA CHAIRPERSON ....................................

HON. M. MWATSAMA DEPUTY CHAIRPERSON ....................................

MR. P. GICHUKI MEMBER ....................................