[2022] KEHC 14609 (KLR)

Ng’ang’a v Stima Investment Co-operative Society Ltd (Civil Appeal E633 of 2021) [2022] KEHC 14609 (KLR) (Civ) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14609 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E633 of 2021

JN Mulwa, J

October 13, 2022

Between

Stephen Chege Ng’ang’a

Appellant

and

Stima Investment Co-operative Society Ltd

Respondent

(Being an appeal from the Ruling of the Co-operative Tribunal delivered on 2nd September 2021 by Hon. B. Kimemia (Chairperson) in Case No. 234 of 2020)

Ruling

1. This is a ruling in respect of a notice of motion dated September 30, 2021 purportedly brought under article 46(1) (d), 47(1) and 50(1) of the Constitution. The appellant/applicant seeks the following orders: -1. Spent.2. That the ruling of the Co-operative Tribunal delivered on September 2, 2021 by Hon B Kimemia be vacated and ex-parte judgment of the Co-operative Tribunal of August 27, 2020 be reinstated;3. That the appellant be allowed to proceed with execution immediately;4. That costs of the respondent’s application dated September 14, 2020 and filed on September 16, 2020 and the appellant’s application dated February 4, 2021 be awarded to the applicant;5. That costs of this application and appeal be provided for.

2. The application is based on the grounds that the appellant obtained a default judgment against the respondent in the Co-operative Tribunal on August 27, 2020. Subsequently, the respondent lodged an application to set aside a non-existent judgment entered on August 25, 2020 instead of August 27, 2021. He brought this to the attention of the Tribunal through his response to the said application but on January 28, 2021, the Tribunal allowed the respondent’s application as drawn. His advocate pointed out the error to the Tribunal and was told to make an appropriate application in that regard. Consequently, his advocate lodged an application for review and setting aside of the ruling of January 28, 2021. The Tribunal dismissed the said application in a ruling delivered on September 2, 2021 but proceeded to correct the error.

3. In opposition, the respondent filed grounds of opposition dated February 14, 2022 in which it contended that the orders sought by the appellant in his application can only be considered upon the substantive determination of the appeal. Further, it stated that granting the orders will have the effect of disposing the appeal summarily and will effectively oust the jurisdiction of the Co-operative Tribunal which is properly seized of the matter.

4. To begin with, I note that the appellant’s application is anchored on various constitutional provisions. The first one is article 46(1) (d) which provides that consumers have a right to compensation for loss or injury arising from defects in goods or services. The second provision is article 47(1) which entitles every person to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Lastly, the appellant invoked article 50(1) which provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. In my view, the aforesaid provisions are irrelevant to the instant application particularly in light of the orders being sought.

5. Indeed, it is noteworthy that in the memorandum of appeal filed herein on October 1, 2021, the appellant seeks prayers which are substantially similar to those sought in the present application. These are that:a.The ruling of September 2, 2021 by the Co-operative Tribunal be set aside for correction of errors of the respondents' advocate.b.The default judgment entered on August 27, 2020 be reinstated.c.The appellant be awarded costs for the application by the respondent dated September 14, 2020 and his own application dated February 4, 2021,d.Costs for this appeal be provided for; ande.The appellant be allowed to proceed with execution immediately.

6. What this means is that the appellant is essentially asking this court to dispose of the appeal which is yet to be set down for hearing. If the court determines the merits of the instant application, there would be nothing left to consider in the appeal. The known practice is that applications are used to seek temporary or provisional orders and thus cannot be used to ask the court for definitive or conclusive orders, unless the appeal or the underlying suit is hopeless or has no legs to stand on. In this case, I find that the orders sought in the application are conclusive and cannot be issued at this stage.

7. In the result, I find the application dated September 30, 2021 to be lacking in merit. The same is hereby dismissed with costs to the respondent.Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 13TH DAY OF OCTOBER, 2022J. N. MULWAJUDGE