[2024] KECPT 1152 (KLR)

Mwinzila v Transcom Sacco Limited (Tribunal Case 222/E284 of 2022) [2024] KECPT 1152 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1152 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 222/E284 of 2022

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

July 25, 2024

Between

Joseph Malonza Mwinzila

Claimant

and

Transcom Sacco Limited

Respondent

Ruling

1. The matter before the Tribunal for determination is the Notice of Preliminary Objection dated 14th February 2024, filed by the Respondent/Judgment – Debtor.In the Notice of Preliminary Objection, the Respondent/Judgment Debtor states that it shall at the hearing of the Notice of Motion dated 30th October, 2023 object and pray for the same to be dismissed on the grounds that:a.The Claimant /Decree Holder, in obtaining the certificate of stated costs offended the schedule II of the advocates Remuneration (Amendment ) Order, 2014. b.The interest being charged on the decretal amount offends section 26 of the Civil Procedure Act; andc.In any case the Notice of Motion Application is brought in bad faith, frivolous, vexatious and an abuse of the court process and should be dismissed with costs in limine.The Claimant/Decree-Holder ‘s response to the Notice of Preliminary Objection is contained in the Replying Affidavit sworn on 15th April, 2024. In his Affidavit, the Claimant/Decree-Holder states that:a.The Preliminary Objection disputes the Tribunal’s assessment of his costs and interest on the principal sum, on the ground that the same offends the law.b.That a Preliminary Objection is not the appropriate way of challenging the assessed costs and interest or of responding to a Garnishee Application.c.That there thus no challenge before the Tribunal disputing the assessment of his costs or the Application dated 30th October, 2023, and the Preliminary Objection should be dismissed.d.That he has not contravened any law by seeking recovery of his judgment sum, costs and interest through the garnishee Application dated 30th October, 2023, neither is the said Application an abuse of the Tribunal process as claimed by the Judgment Debtor or at all and prays that the Preliminary Objection be dismissed with costs.

2. We note that paragraph 7 of the Replying Affidavit delves into the merit of the said Application and Decree which we shall not go into in this ruling.The Notice of Preliminary Objection was canvassed by way of written submissions. The Respondent/Judgment Debtor filed written submissions dated 28th April, 2024 were filed on 3rd May 2024 while the Claimant/Judgment Debtor filed written submissions dated 3rd May, 2024.

Determination 3. The issue for determination herein is whether the Notice of Preliminary Objection has merit. We have considered the documents filed by the parties, including the written submissions and the cited case-law. We have also considered the applicable law.We observe that:a.The Respondent /Judgment Debtor seeks by way of Notice of Preliminary Objection, for dismissal of the Claimant/Decree Holder’s Application for Garnishee orders on account of the costs and interest contained in the Decree and Certificate of Costs.b.That the Application for garnishee orders is for recovery of the principal amount, costs and interest.c.That the Respondent/Judgment Debtor has grievances related to the assessment of costs and interest on the decree.

4. We agree with the Claimant/Decree Holder that the Respondent/Judgment Debtor that Notice of Preliminary objection is not a proper response to the merit of the Application dated 30th October, 2023, that a Preliminary Objection should be raised on a pure matter of law that requires no other issue to be determined and that the Preliminary Objection should not raise objection on a matter that is based on the court’s discretion.

5. It is our position that the issues of costs and interest raised in the Preliminary Objection of the Respondent/Judgment Debtor cannot be determined within the application. We borrow from the ruling of the Supreme Court of Kenya in Petition [Application] No.16 of 2019 and other decided cases in holding the Respondent/Judgment Debtor ought to have objected to the content of the decree and specifically the costs and interest by filing an Application for review and setting aside of the Decree or Appeal.Similarly the ground of the preliminary objection that the Notice of Motion is brought in bad faith frivolous, vexatious and an abuse of the court process is a not proper ground for Preliminary Objection as it raises issues which go into the facts and merits of the Application which ought to be started and proved vide a Replying Affidavit.

6. Both parties have submitted at length on matters touching on the merit of the garnishee application and on the substance of the content of the Decree. We refuse to be dragged into merits of matters that are not currently before us for determination.

7. In conclusion , we find that the notice of Preliminary Objection dated 14th February 2024 lacks merit and the same is hereby dismissed with costs.Hearing Application dated 30. 10. 2023 on 21. 8.2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON - SIGNED 25. 7.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE - MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI - MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 25. 7.2024HON. PAUL AOL - MEMBER SIGNED 25. 7.2024Tribunal Clerk JemimahMalonza holding brief for Tanui for Judgment CreditorNo appearance for Judgment DebtorMalonza advocate - We served the ruling notice and there is Affidavit of Service.Tribunal order:On Preliminary Objection dated 14. 2.2024 its dismissed and hearing of Application dated 30. 10. 2023 on 21. 8.2024. Notice to issue.HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024