[2023] KECPT 925 (KLR)

Mwanzia & 4 others v Royal Housing Cooperative Society Ltd (Tribunal Case 737 of 2015) [2023] KECPT 925 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 925 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 737 of 2015

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

August 31, 2023

Between

Moses Mwanzia and 4 others

Claimant

and

Royal Housing Cooperative Society Ltd

Respondent

Ruling

1. This ruling dispenses with the claimants Notice of Motion Applications one dated October 4, 2021and another one dated October 8, 2021both supported by an affidavit sworn by the claimant, Samuel Muigai, and brought under section 1A, 1B and section 3A of the civil procedure Act cap 21 Laws of Kenya, order 10 rule 11 of the Civil Procedure Rules 2010 and article 159(2d) of the Constitution of Kenya) The application seeks the following orders:a.That this Application be certified a urgent and service be dispensed with in the first instance and the Application be heard Ex- parte.b.Pending hearing and determination of this Application there be an Interim Stay of Execution and enforcement of the Ruling delivered by the Honourable Tribunal on 4th October, 2021. Consequently, an order for the immediate release of the Defendant’s Chairman (Mr. Samuel Muigai) be issued.c.That pending hearing and determination of this Application, this Honourable Tribunal be pleased to direct that the bail amount of Kshs. 70,000/= paid to Central Police station immediately be refunded to the Defendant’s Chairman.d.That this Honourable tribunal be pleased to set aside the proceedings of 9th September, 2021 when summons for arrest were issued.e.That the ruling delivered on 4th October 2021 be reviewed varied and/or set aside.f.That this Honourable Tribunal be pleased to grant leave to the Defendant’s Chairman to file a response to the Notice to show cause Application on record.g.That the cost of this Application and the Application giving rise to the orders herein be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The Respondent was not served with the Notice to Show Cause Application, and consequently did not get an opportunity to be heard. That the Counsel for the Applicant misled the Tribunal that there was a consent entered indicating that the Applicant had undertaken to pay. Further, that a copy of a cheque purported to be issued by the Applicant yet they were not given an opportunity to peruse or respond to the same.

3. The Respondent did not file a Replying Affidavit and neither did both parties file their submissions.AnalysisA brief background leading to this application is that this Tribunal delivered a ruling 4th October 2021 committing the Judgment Debtor to 15 days in civil jail until the payment of the decretal sum of Kshs. 1,048,225. 00/=. The Warrant of arrest leading to the arrest of the judgment debtor was issued on 9th September 2021 when the matter came up for a Notice To Show Cause. The advocate for the judgement creditor informed the court that they had tried to settle the matter, and that a cheque of Kshs. 500,000. 00/= had been issued but bounced for sufficient funds. He prayed the court to issue a warrant of arrest for the chairman of the Respondent. There was no appearance for the Judgement Debtor. From the records, the mention date of 9th September 2021 was taken in court where the advocate for the Judgement Creditor was present as well as an advocate, R.M Mutoro Advocate, who sought leave to come on record for the Judgment Debtor and which leave was granted. Therefore, we find the proceedings of 9th September 2021 proper since the mention date was set in court where both parties were present.

4. On the question on whether to review, vary or set aside the ruling delivered on 4th October 2021, the Tribunal has considered the facts that led to this application. This Tribunal is guided by Parliamentary Service Commission v Martin Nyaga Wambora & others [2018] eKLR, where the Court reiterated as follows:-[30] We further add that the review window so envisaged is not meant to grant an applicant a second bite at the cherry. It is not an opportunity for an applicant to re-litigate his/her case… at the core of the application is the Court’s exercise of discretion. It is the Court/Judge’s decision that is impugned and not the substantive application being re-argued. Hence an Applicant is under a legal burden to lay a basis, to the satisfactory of this Court, that in exercise of its discretion, the limited Bench acted whimsically or misdirected itself in reaching the decision it made.”

5. A judgment was issued for the Claimant/Respondent as against the applicant herein. A Notice to Show Cause Application was issued, in which the Judgment Debtor did not put in any response and there was no appearance on the date of physical mention date for the Notice to Show Cause Application. A warrant or arrest was issued and the judgement debtor was then arrested. Whether the Tribunal relied on the alleged bounced cheque or not is immaterial since the presence or absence of a ‘bounced cheque’ is still a non-payment of the decretal amount. The only way this Tribunal would have issued a whimsical or misdirected ruling would be when the payment made or a consent on payment by the parties. Otherwise it would be expected that if one does not respond to a Notice to Show Cause and fails to appear on the mention for the Notice to Show Cause and a warrant is issued, arrest is imminent unless payment or a consent is reached. The Tribunal finds nothing whimsical or misdirection in how it has acted. Accordingly, prayer 6 fails.Flowing from above, the final orders are that:

1. The notice of motion application dated 8th October 2021 is hereby dismissed.2. Theclaimant/respondent is awarded the costs of this application.3. Orders to apply to the notice of motion application dated October 4, 2021since the prayers are similar.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023Hon. Beatrice Sawe Member Signed 31. 8.2023Hon. Fridah Lotuiya Member Signed 31. 8.2023Hon. Philip Gichuki Member Signed 31. 8.2023Hon. Michael Chesikaw Member Signed 31. 8.2023Hon. Paul Aol Member Signed 31. 8.2023Tribunal Clerk JemimahMs. Akinyi holding brief for Mr. Ikua for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023NRB.CTC.NO. 800. E889 OF 2022 RULING A.W.N 9