[2024] KECPT 927 (KLR)

Mungai v Urithi Housing Co-operative Society Limited (Tribunal Case 168 of 2019) [2024] KECPT 927 (KLR) (Civ) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 927 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 168 of 2019

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

May 23, 2024

Between

George Kinani Mungai

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Motion Application dated 16th May, 2023 which was filed under a Certificate of Urgency seeking the following orders:1. Spent.2. That the Honourable Tribunal be pleased to grant an order suspending, lifting and/ or staying execution of Warrant of Arrest and Committal to Civil Jail of Samuel N. Maina, the Chairperson, John C. Chege – Vice Chairperson, Miriam Muringi – Secretary and Felistas Wanjeri Waweru – Treasurer being the members of the Management Committee of the member of the Management Committee of the Respondent/ Judgement-Debtor, pending the hearing and determination of this Application inter-parties.3. Upon the hearing and determination of this Application inter-parties, the Honourable Tribunal be pleased to grant an order suspending, lifting and/ or Staying Execution of Warrant of Arrest and Committal to civil jail of Samuel N. Maina – the Chairman, John C. Chege – Vice-chairperson, Miriam M. Muringi Secretary and Felistas Wanjeri Waweru – Treasurer being the members of the Management Committee of the Respondent/ Judgement-Debtor.4. The Honourable Tribunal be pleased to grant leave to the Respondent/ Judgement-Debtor to liquidate the balance of the decretal sum of Kshs. 2,435,505/= by making monthly installments of Kshs. 50,000/= to be paid from the date of the order until payment in full.5. Costs of this Application.

2. On the face of the Application, the Respondents provided ten (10) grounds to justify the prayers sought. In addition, a Supporting Affidavit dated 16/5/2021 re-stating the grounds was attached together with this Tribunal’s order dated 4th June, 2021.

3. In a Replying Affidavit dated 12th June, 2023, the Claimants raised several grounds of objection and provided a trajectory of events which included a purported attempt to offer the Claimant two(2) parcels of land namely Kajiado/ Kitengela 93210 and Kajiado/ Kitengela 93063 to satisfy the decretal sum.The Claimant stated under paragraph 8 of the Replying Affidavit as follows:“that I was amenable to proposal to settle the decretal sum through the said parcels of land but after conducting my due diligence, I was also able to establish that the two parcels of land had already been sold off to a third party”

4. To expediate the determination of the Respondents Notice of Motion Application dated 16th May 2023, parties by consent agreed to canvass the prayers raised by way of Written Submissions. Subsequently, the Respondent/ Applicant filed and served their written Submissions dated 11/01/2024 on 15/1/2024 and the Claimants/ Respondent filed and served their written Submissions dated 19th January, 2024 on 22nd January, 2014.

Analysis And Determination. 5. Upon reading through the Notice of Motion, the Supporting Affidavit further Affidavit and Written Submissions of the Respondent together with the Claimants Replying Affidavit and his Written Submissions. We have isolated two (2) issues for determination.a.Whether the Respondent’s Application dated 16th May has merit?b.Who should pay the costs.

6. Whether the Respondent’s Application dated 16th May, 2023 has merit?First, this Tribunal has pronounced itself on this matter though the delivery of judgement dated 27th May, 2021 and its Decree dated 7th June, 2021. The Application seeks for stay and or lifting of Warrant of Arrest against the Applicant’s officials.Thereafter, the Respondent brought in a number of Applications in an attempt to show delay the process of execution.

7. The Respondents have not been lucky because the Claimant has been consistent and determined to recover what is rightfully his through the filing of responses and Garnishee Applications.

8. Through the ruling of this Tribunal delivered and dated 2nd September,2021, an order was issued on 8th September, 2021 to House Finance Corporation (the 2nd Garnishee) to release Kshs. 542,932/= which was held on Account No. 9364193201-0 of the Judgement Debtor to the Judgment Creditor.

9. This was not an easy let go by the Respondent who had denied in the Replying affidavit dated 18/8/2021 that the money in that account was not available for attachment. More specifically under paragraph 5 of the said Affidavit, the Respondent stated thus:”that in Respect to the funds held in HFCK Bank account No. 9364193201-0 and 9364193202-1 we wish to bring to this Tribunal attention that the said accounts were frozen by the Commissioner of Co-operative Development.”This shows that the Respondent was hiding and not willing to release the money voluntarily until the Claimant Garnished HFCK and this Tribunal made the orders.To this end, we find that the behaviors of the Respondent does not demonstrate any iota of good faith.

10. However, in an attempt to render justice to the parties and to specifically wake up the Respondents, this Tribunal on the mention date of 10/3/2022 ordered the parties to explore out of court settlement but instead the Respondents blundered by offering two (2) parcels of land in Kitengela (see paragraph 3 of this ruling) which was later discovered by the Claimant that the Respondent had sold to some third parties. This certainly demonstrated that the Respondents had no good faith to settle the decretal sum.

11. Given that this Tribunal delivered a judgement on 27th May, 2021 regarding this matter and since then the Respondents have been filling application after another application with an intention to delay the payment. This is one of those cases where the court stated in the case of Factory Guards Limited Versus Abel Vundi Kitungi (2014) eKLR that:“it would be unfair to deny a party the fruits of his lawfully obtained judgement merely because his financial status was unknown”

12. To demonstrate further the unwillingness of the Respondents to pay the decretal sun, they made an offer to pay Kshs. 50,000/= per month but then the Claimant made a counter proposal to be paid Kshs. 500,000/= per month, the Respondents did not want to negotiate further and instead took an about turn to state that they have been facing difficulties a claim which was not proved satisfactorily.

13. We find that the Respondents did not take advantage of the provisions under Order 21 Rule 12 of the Civil Procedure Rules 2010 which provide that the court ,ay order that the payment be made by installments on such terms on to the payment interest by throwing away the route to negotiate with a view to reach a consensus.

14. Similarly, we have perused the rulings of this Tribunal and its orders and are convinced that the Respondents have had a sufficient time to liquidate the decretal sum hence we find no sufficient reasons have be fronted as to warrant the lifting, suspension or staying the execution of the warrants of arrest and committal to civil jail of Mr. Samuel N. Maina, the chairperson, Mr. John C. Chege – the Vice -chairperson, Mirriam Muringi the Secretary and Felistas Wanjeri Waweru – The Treasurer – The four are Management Committee of the Respondent.

Disposition. 15. Accordingly, the upshot of this is that the Respondent’s Notice of Motion Application dated 16th May, 2023 lack merit and is hereby dismissed.

Orders.i.The Respondent’s Notice of Motion Application dated 16th May, 2023 lack merit and is hereby dismissed.ii.The judgement debtor to bear the costs of this Application.It is so ordered

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. Hon. J. Mwatsama Deputy Chairperson Signed 23. 5.2024Hon. Beatrice Sawe Member Signed 23. 5.2024Hon. Fridah Lotuiya Member Signed 23. 5.2024Hon. Philip Gichuki Member Signed 23. 5.2024Hon. Michael Chesikaw Member Signed 23. 5.2024Hon. Paul Aol Member Signed 23. 5.2024Tribunal Clerk JonahEchon advocate holding brief for Mwangi advocate for the Respondent.Wanjiru Thungu advocate for claimant- no appearance.Hon. J. Mwatsama Deputy Chairperson Signed 23. 5.2024