[2021] KECPT 608 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

MISC, CLAIM CASE NO. 4 OF 2019

NICHOLAS SIMIYU MAIKUMA..............................................1ST CLAIMANT

PERIS CHEMTAI KIPTOO........................................................2ND CLAIMANT

ALICE KAVULANI LUVISI.........................................................3RD CLAIMANT

VERSUS

SHADRACK KIPYATICH JONATHAN........................................RESPONDENT

RULING

Vide the Application dated 30. 7.2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

1. That this Application be certified as extremely urgent and service thereof be dispensed with in the first instance;

2. That this Honorable Tribunal proceeds to dismiss/strike out Claimants claim “with prejudice” for lacking merit;

3. That this Honorable Tribunal be pleased to issue a declaration that the applicant herein is not guilty of the allegations/offences laid down by the Claimants in the statement of claim dated 19th March, 2014;

4. That the claimants pays damages and/or compensation of Kshs.192,490. 09/= suffered by the Applicant;

5. That the Claimants pays costs of the suit/claim;

6. Any other relief that the Honourable Tribunal may deem fit and just to grant;

7. That cost of this application be in the cause.

The Application is supported by the grounds on its face and the Supporting Affidavit sworn by the Respondent on 30. 7.2019.

The Claimant have opposed the Application vide the Replying Affidavit sworn by the 1st Claimant, Nicholas Simiyu on 29. 10. 2020.

Vide the directions given on 5. 8.2020, the Application was canvassed by way of written submissions. The Respondent filed his submissions on 10. 9.2020 while the Claimants did so on 4. 11. 2020.

Respondent’s Case

Vide the instant Application, the Respondent prays for the statement of claim dated 19. 3.2014 to be struck off for lacking merit based on grounds inter alia.

That on 28. 7.14, the Claimants initiated the claim alleging that he approached them to guarantee a loan of Kshs.95,000/=. That he deny even borrowing the said loan. That the said statement of claim is fatally defective as it lacks material facts. That the said statement of claim is not accompanied by a witness statement.

That contrary to the false figures in the said statement of claim, he borrowed a premium (internal) loan of Kshs.90,000/= on 27. 7.2011 which he started repaying through his monthly salary with effect from 1. 8.2011 and that when his salary was stopped by his employer Teachers Service Commission, the four guarantors began repaying for him the remaining balance of Kshs.80,000/=. That the loan balance he admitted in his application dated 30. 6.15 is not linked to the loan of Kshs.95,000/=. That all the documents relied on by the Claimants do not reflect a loan of Kshs.95,000/=.

Claimant’s Case

The Claimants have opposed the Application on the ground that the claim sought to be struck off was heard and determined by the Tribunal. That the Claimants instituted claim No. 33/14 and effected service upon the Respondent. That the Respondent did not enter appearance thus prompting ex parte judgment to be entered. That later on, the Respondent applied for it to be set aside. That this led to the case to proceed on trial. That later, the suit was concluded and judgment entered against the Respondent. That this paved way for execution proceeding to commence. That due to inadvertence, the file at the registry could not be found leading to reconstruction of a skeleton file. That throughout the pendency of the same, the Respondent was well aware that the said proceedings were ongoing. That he Respondent is therefore being mischievous by revisiting matters which have since been concluded.

Issues for determination

The Claimant’s Application has presented the following issues for determination:

a. Whether the Tribunal has jurisdiction to grant the orders sought;

b. Who should meet the costs of the application?

Jurisdiction

Jurisdiction is everything. Without it, a court of law downs its tools. This was the holding of the court in the celebrated case of In the owners of the Motor vessel Lilian “S” –vs- Caltex oil (Kenya) Limited [1989]KLR1, Though not stated directly, the Claimants by stating that the claim the Respondent seeks to strike off was determined a long time ago, they are simply saying that we do not have jurisdiction to entertain it. Once a court delivers a judgment it becomes functus officio as regards the pleadings to resulted in the said judgment. the effect of this is that no party is at liberty to seek to litigate on the said matters unless on an Application for review on or Appeal.

The Respondent has not controverted the contentions by the Claimants that the matters being referred to by the Respondent in the present Application have since been determined. In fact we note that the judgment emanating from the said claim are at execution proceedings as the Claimants have filed a Bill of costs dated 5. 6.2017.

In circumstances, we find that the instant Application is a non-starter and hereby dismiss it with costs to the Claimants.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MARCH, 2021.

Hon. B. Kimemia Chairperson Signed 25. 3.2021

Hon. Jane Mwatsama Deputy Chairperson Signed 25. 3.2021

Mr. P. Gichuki Member Signed 25. 3.2021

Nakitare holding brief for Kweu for Claimant: Present

Hon. B. Kimemia Chairperson Signed 25. 3.2021

By consent fixed for taxation. Mention 13. 5.2021 at Kakamega

Hon. B. Kimemia Chairperson Signed 25. 3.2021