[2024] KECPT 1688 (KLR)

Nganga v Yes Housing Co-operative Society Limited (Tribunal Case 175 of 2019) [2024] KECPT 1688 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1688 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 175 of 2019

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

October 3, 2024

Between

Susan Wangui Nganga

Claimant

and

Yes Housing Co-operative Society Limited

Respondent

Ruling

1. This Ruling relates to a Notice of Motion Application dated on 21st December 2023 filed under a Certificate of Urgency by the Respondent seeking for the following orders:i.Spentii.That Status quo be maintained pending the hearing and determination of this application.iii.That the Tribunal temporarily lift the Warrants of Arrest against the Respondents.iv.That the costs of this Application be borne by the Plaintiff.To support the Application, one of the Directors of the Respondents swore an Affidavit dated on 21/12/2023 which was filed in The Tribunal on 12th January 2024.

2. The genesis of this uproar is that the Claimant had earlier filed a Statement of Claim dated on 26th February 2019 for refund of Kshs. 140,000/= being her saving contributions. She made in the Sacco since 2014. When the Respondents failed to enter appearance and/or file a defence, The Tribunal upon request for Judgement Application dated 5th July 2019 entered Summary Judgement on 26/08/2019 against the Respondents. An extraction of a decree dated 11th November 2019 and a Notice to Show Cause dated 14th November 2019 was served upon the Respondents vide an Affidavit of Service dated on 8th December 2023. Understandably which the Respondents failed to respond to the Notice to Show Cause, The Tribunal issued Warrants of Arrest against the Respondents.

3. We have analysed the grounds listed by the Respondents and the Supporting Affidavit of the Respondents and isolate two (2) issues for determination;a.Whether the Warrants of Arrest can be lifted against the Respondents committee?b.Whether this matter can be settled out of the Tribunal?

Issues one Whether the Warrants of Arrest against the Respondent’s committee can be lifted? 4. While discharging its obligations, The Tribunal issued the Warrants of Arrest against the respondents as provided under Section 38(d) of the Civil Procedure Act 2010 which states that:“Subject to such conditions and limitations as may be prescribed, the court may prescribe, the court may on application of the decree-under, order expectation of the decree....(d)by arrest and detention in prison of any person. “The current Respondent Committee state that they were not in office at the time that the warrants were issued.They further state that the previous committee members mismanaged the Sacco to the extend that the Sacco could not meet their minimal obligations.

5. The new committee members stated that they came into office in November 2023, the month when the warrants were being issued.On the same breath and with a show of good faith, the current committee are willing to pay the claimant and are ready to table a proposal to the Tribunal.

6. The imminent arrest is causing fear among the current committee which is an impediment to their efforts in reviving the Sacco. For now, they feel like their hands and feet are tied to the extend that their movement is curtailed.

7. To give them a chance to freely run the affairs of the Sacco, and having shown sufficient cause that they will not delay the execution of the decree, we hereby invoke the provisions of Order 22 Rule 22(1) and stay the execution of this tribunal against the respondents for three (3) months in order to enable them to pay the decretal sum as ordered.

Issue 2 Whether this matter can be settled out of court? 8. In the Constitution of Kenya 2010, the principle of alternative dispute resolution is provided under Article 159(2)(c) as follows;(2)in exercising judicial authority, the courts and Tribunals shall be provided by the following principles(c) alternative forms of dispute resolution including reconciliation, mediation, and arbitration and traditional dispute resolution mechanisms shall be promoted”This has been operationalized through the enactment of various acts of parliament including amendments in the Civil Procedure Act.

9. Arbitration Dispute Resolution is a very important colleague in the promotion of justice as it gives parties the authority to arrive at a decision that is acceptable to them and within a short period.The Tribunal would be happy to allow the parties to use the Arbitration Dispute Resolution method in the spirit of Rule 4 of The Co-operative Tribunal (Practice and Procedure) Rules 2009 which provide:“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure”

10. In line with the above, the Tribunal allows the Respondents to reach out to the Claimant and attempt to reach a settlement within 3 months from the date of this ruling; failure to which the warrant orders and all other Consequential Orders shall take effect.

Orders.1. Application dated 21/12/2023 if found to be with merit and is allowed in terms of prayer-2 and prayer-3. 2.That Status quo is maintained pending the hearing and determination of this application.3. That the Tribunal temporarily lift the Warrants of Arrest against the Respondents.4. Costs in the causeFor avoidance of doubt, the Respondent to reach out to the Claimant and attempt an Act of Court settlement within three months from date of this ruling; failure to which Warrants of Arrest to be re-issued and all other subsequent orders that have been stayed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS3RD 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 MutaiMureithi Advocate holding brief for Mogaka Advocate for the RespondentChege Advocates for the Applicant