[2024] KECPT 1712 (KLR)

Ng'ang'a (Suing as the personal representative of Mariam Wanjiru Ng'ang'a) v Kyanjau Housing Co-operative Society Ltd & another (Tribunal Case 382 of 2016) [2024] KECPT 1712 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1712 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 382 of 2016

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

October 3, 2024

Between

Jane Mwihaki Ng'ang'a (Suing as the personal representative of Mariam Wanjiru Ng'ang'a)

Claimant

and

Kyanjau Housing Co-operative Society Ltd

1st Respondent

Kiandutu ACK Church

2nd Respondent

Ruling

1. The matter before us for determination is the Claimant’s/Decree-Holder’s Notice of Motion Application dated 30th October, 2023 for orders:a.Spent.b.That the Honourable Court be pleased to grant leave to the firm of E.S. Ochieng & Company Advocates to replace the firm of Wandambwa Advocates and come on record to represent the Decree Holder after judgement.c.That the Honourable Court be pleased to substitute Miriam Wanjiru Ng’ang’a (deceased) for Jane Mwihaki Ng’ang’a for purposes of execution.d.That the Honourable Court be pleased to direct that the hearing of this Application proceeds by the way of viva voce evidence.e.That the Honourable Court be pleased to issue Summons to compel the attendance in Court by the 2nd Respondent Mr. Michael Njuguna Njoroge (Chairman of the 1st Respondent) to show cause why he should not be committed to Civil jail and/or his property sold for disobeying the judgement dated 17th October, 2017. f.That the Honourable Court be pleased to order the Land Surveyor Thika County to cut from 1st Respondent’s property two plots measuring 50×100 and a further 100×100 to compensate for the swampy area awarded to the Decree Holder and upon such survey, the land registrar Kiambu County be and is hereby directed to cause the title deeds for the surveyed properties issued to the Decree Holder.g.That the costs of this Application be provided for.The Application is premised on the face thereof and is supported by the Affidavit of Jane Mwihaki Ng’ang’a sworn on 30th October, 2023. The Respondent has opposed the Claimant’s Application vide the Replying Affidavit sworn by Michael Njuguna Njoroge on 3rd June, 2024.

Claimant’s Case. 2. The Claimant/Applicant states that the Tribunal passed judgement herein, 17/10/2017 ordering the Judgement-Debtor to transfer two plots measuring 50×100 within the 1st Respondent’s property and a further plot in the swampy area. That the Judgement-Debtors have deliberately disobeyed the Court’s order and have refused to transfer the said properties for over 4 years despite several attempts by the Claimant/Decree-Holder to have the Judgement-Debtors obey the Court order. In her Affidavit in support of the Application, Jane Mwihaki Ng’ang’a depones that she is the lawful personal representative of the late Miriam Wanjiru Ng’ang’a who died on 6th March, 2021, by virtue of the Grant of Administration Ad Litem annexed to the Affidavit. That the Claimant/Decree-Holder’s Advocate endeavored to confirm their compliance with the judgement but did not get any response.

Respondent’s Case. 3In his Replying Affidavit, Michael Njuguna Njoroge states that he has never been a party to the suit herein in his personal capacity, therefore he does not understand how and why he has been enjoined as a Defendant/Judgement-debtor. That no leave has been sought to enjoin him as a Defendant/Judgement-Debtor. That the Judgement-Debtor is a Body Corporate with capacity to sue and be sued hence the Deponent’s enjoinment in this suit as a Judgement-Debtor is misplaced, vindictive and ill-advised and the name should be struck out from the proceedings with costs. That the 1st Respondent has complied substantially with the orders of the Tribunal. That the Applicant retained the swampy plot as directed by the Tribunal undisturbed. That the Applicant has already been allocated two plots as directed whose ballots were sent to their Advocates on record and the 1st Respondent has transferred the said plots in its records. That the said ballots and transfers remained in the name of the deceased Ng’ang’a Kamau Muthoga as the letters of Administration have not been availed to the 1st Respondent. That the 1st Respondent has paid, agreed costs to the firm of Wandabwa & Company Advocates. That the society does not process titles as that is a preserve of the Ministry of Lands. That the Tribunal cannot issue blanket orders as invited by the Applicant in prayer no. 6 of the Application. That the Applicant has been economical with the truth and the Application should be dismissed with costs.The parties were directed to file Written Submissions. As at the Time of writing this Ruling, the Decree-Holder had filed Written Submissions and the Judgement-Debtor had not filed Written Submissions.

Analysis And Determination. 4. From the documents filed by the parties herein, we find only one issue for our determination to wit:i.Whether or not the Decree-Holder/Applicant is entitled to the orders sought.a.Prayer number 1 is spent.b.Prayer number 2. Under this prayer, the Applicant seeks to change Advocates after Judgement. It is trite that a party is allowed to change Advocates upon an order of the Court. Order 9 Rule 9 of the Civil Procedure Rules provides that such order is made upon the Application of the party who seeks to change Advocates, with notice to all parties or upon consent filed between the outgoing advocate and the proposed incoming advocate. In the case of S.K. Tawadi vs Veronica Runelmann (Supra), the judge held as follows:-“in my view, the essence of order 9 Rule 9 of the Civil Procedure Rules, was to protect advocates from the mischievous clients who will wait until a Judgement is delivered and then sack an Advocate and either replace him…”

5. We have looked at the Affidavits filed by the Judgement-Debtor herein and note that the firm of Wandabwa Advocates was not served with the Application and yet the Decree-Holder seeks to replace the said firm.Prayer number 2 of the Decree-Holder’s Application therefore fails.After issuing the above order declaring that prayer number 2 of the Decree-Holder fails, the firm of E.S. Ochieng & Company advocates is found not to be properly on record for the Decree-Holder hence the rest of the orders sought fail accordingly. The Decree-Holder’s Notice of Motion Application dated 30thOctober, 2023 is dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaiNo appearance by partiesRuling delivered in their absence.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024