[2024] KECPT 1710 (KLR)

Njoroge v Royal Housing Co-operative Society Limited & 2 others (Tribunal Case 716 of 2016) [2024] KECPT 1710 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1710 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 716 of 2016

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

October 3, 2024

Between

Peter Mutahi Njoroge

Claimant

and

Royal Housing Co-operative Society Limited

1st Respondent

The Chairman Royal Housing Co-operative Society Limited

2nd Respondent

The Secretary Royal Housing Co-operative Society Limited

3rd Respondent

Ruling

Introductions 1. What is before the Tribunal for determination are three connected and related Applications;i.The First Application is dated 27th January 2023,ii.The Second Application is dated 2nd February 2023, and,iii.The Third application is dated 20th April 2023.

2. The Second Application dated 2nd February 2023 was necessitated by the directions given by this Tribunal in the First Application, and given that prayers 2 and 3 of the Second Application were granted, the Second Application is technically spent. The Third application dated 20th April 2023, according to the Claimant, was as a result of non-compliance of the injunctive orders issued on 3rd February 2023 as a result of directions given in the Second Application.

3. The Applications were brought under Article 159 of the Constitution, Section 1A, 1B, 3A and 63(c)o f the Civil Procedure Act, Order 5 Rule 17, Order 40 Rule 3, Order 51 Rule 1, 3, 4, 10, 11, 13 and 16 of the Civil Procedure Rules and Rule 3 of the Cooperative Society Rules 2009 seeking among others:1. That the Honorable Tribunal to issue summons against the 2nd and 3rd Respondents to physically appear before the Tribunal and show cause why they should not be committed to civil jail and their property sold for disobeying the injunctive orders dated 3rdFebruary 2023. 2.That the Honorable Tribunal be pleased to find and hold that the Respondents willfully disobeyed the injunctive orders dated 3rd February 2023 and effectively commit the Respondents to civil jail for a term of six (6) months.3. That the Honorable Tribunal be pleased to order that the status quo prior to 2nd November 2016 be maintained or alternatively and without prejudice, the Honorable Tribunal be pleased to order attachment and sale of the Respondents property worth the current market value of the suit property.4. That an order be issued cancelling all dealings with the suit property between the Respondent and any third party for disobedience of court orders.5. That the Honorable Tribunal be pleased to order the Respondents to surrender all ownership documents of the suit property in court.6. That an order of specific performance be issued directing the Respondents to honor their legal obligation to transfer the suit property to the Claimant or in the alternative and without prejudice, the Land Registrar be directed to sign the transfer documents conferring the legal title of the suit property upon the Applicant.

4. The Applications were based on the grounds of sworn Supporting Affidavits of Peter Mutahi Njoroge which stated that:1. There was an Application dated 1st November, 2016 which was filed by the firm of Mutio Mutisya & Co. Advocates seeking injunctive orders against the Respondents which Application was considered by the Tribunal and Injunction issued against the Respondents on 2nd November, 2016. 2.They said firm prosecuted the Application and were directed to file submissions, however they failed to do so in time and the matter was listed for notice to show cause on 16th December 2021 when the suit was dismissed for want of prosecution.3. The Claimant was able to have a different set of Advocates who lodged the current Application dated 27th January 2023 seeking to set aside the dismissal orders and reinstate the matter for hearing on merit. Additionally, the firm sought reinstatement of the injunctive orders issued on 2nd November 2016. 4.The Respondents learnt of these developments and quickly demolished the suit property even before the orders dated 27th January 2023 and the Application could be served upon them, prompting the Application dated 2nd February 2023 seeking fresh injunctive orders against the Respondents in such terms that fit the circumstances.5. The Honorable Tribunal considered the same and issued the injunctive orders dated 3rd February 2023 which orders were served on the Respondents counsel on record.6. The Respondents had knowledge of the orders dated 3rd February 2023 but willfully disobeyed the same by alienating or disposing or dealing with the construction materials of all that property known as House No. 64 situated at Royal/Razak/Progressive Estate Plot No. 2358 /10. Demolishing and reconstructing new structures where the suit property was with intention to sell the same to a third party and attempting to transfer legal ownership of the suit property while the same was subject to the current suit.7. The Claimant stands to suffer massively if the situation is not urgently rectified and proper directions given to aid preserve the subject property, and further the Claimant shall have been condemned to serve the Respondents action without remedy.

5. The Claimant filed his written submissions dated 15th January 2024 raising among others issues:1. That by the Honorable Tribunal giving orders of injunction on 3rd February 2023, the Tribunal had already exercised its jurisdiction in determining the dispute before it and technically reinstated the suit.2. That Order 12 Rule 6 gives the Tribunal authority to reinstate a suit that they've dismissed, and as such, the argument that the Tribunal does not have jurisdiction to reinstate the suit is legally unsound.3. That the Tribunal issued orders on 3rd February 2023 restraining the Respondents jointly and severally from alienating/disposing/selling or transferring or dealing in any manner with the construction materials from the suit property, and the Respondents were served with that Order on 10th February 2023 but they still went ahead to build a new structure with the same materials.4. That Order 40 Rule 3 of the Civil Procedure Rules provide for what happens in cases of disobedience of court orders. The court granting the injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding 6 months.5. That the officer appointed to do assessment Mr. Stephen Maguire Ongati prepared a report in honor of the Orders dated 3rd February 2020 after visiting the suit property on 31st March 2023, and the contents of that report has not been contested by the Respondents. The assessor observed in his report that a small starting house had just been demolished to pave way for the construction of a new house which was under construction as at the time of his visit on 31st March 2023. 6.That's the assessor values the cost of construction at Kshs 1, 350, 000/= excluding the cost of land7. That despite the injunction, the Respondents did not stop the constructions, neither did they stop using the construction materials from the Claimants house they had demolished8. That the breach of court orders is extremely prejudicial and grave and the Respondents may have already transferred or are in the process of transferring the said property to a third party9. That due to the non-compliance with the court orders, the Claimants property known as House No. 64 situated at Royal/Razak/Progressive Estate Plot No. 2358 /10 may no longer be existing, and Rule 3 of the Cooperative Society Rules 2009 give the Tribunal powers to make orders in the interest of justice. As such, the Claimant should be awarded Kshs 1, 350, 000/= being the equal market value of the property he has been deprived by the Respondents, and further for the Respondents to be ordered to pay for the value of the land as shall be assessed by a qualified valuer.

6. The Respondents though their Chairman Samuel Muigai Njoroge filed a Replying Affidavit dated 9th August, 2023 in response to the Applications and written submissions dated 19th March 2024 raising among others issues:1. That the Applications are misconceived, frivolous, bad in law and a waste of the Honorable Tribunals precious time.2. That the matter stands dismissed from 16th December 2021 for want of prosecution.3. That the Applications are informed by malice and the intention is to set aside a judgment on record through the back door without seeking to reinstate the suit.4. That the Tribunal is functus officio in the matter and should not engage in non-existing suit.5. That vide a ruling delivered by the Tribunal on 6th February 2018, the Tribunal was satisfied among other findings that the Claimant had faulted the 1st Respondent Society Rules and willfully applied to be removed as a member of the 1st Respondent, and also that the Claimant received his contribution in full and was not a member of the 1st Respondent Society and as such had no claim whatsoever against the Respondents.6. That the ruling of 6th February 2018 remains unchallenged and therefore cannot be varied by the Applications in the manner drafted. That in that ruling, the Honorable Tribunal found that the Claimant had ceased to be a member of the 1st Respondent Society, having voluntarily withdrawn his membership and had been reimbursed all his contributions of Kshs 130,000/= via check number 000200 dated 28th November 2015, following which the Claimant offered to surrender house No. 64 back to the Society after receiving back his refund and voluntarily vacated.7. That the Claimant has no prima facie case against the Respondents and will suffer no prejudice should the Applications be dismissed. That the Claimant voluntarily withdrawn his membership and was never admitted back to be a member of the 1st Respondent Society8. That the Claimant voluntarily surrendered the house No. 64 back to the Society when he withdrew his membership and received a refund of his contribution and actually moved out of house No. 64 and the house was reallocated to other members of the 1st Respondent Society and as such, the Claimant cannot claim the house to still be his.9. That the Claimant has neither pleaded nor demonstrated that he has a triable case that warrants reinstatement of the suit.10. That the Claimant did not disclose to the Tribunal that similar prayers of injunction were sort vide the Application dated 1st November, 2016 which Application was heard and determined on merit. The ruling of 6th February 2018 remains unchallenged and as such, the Applications are res judicata.11. That the Claimant cannot insist to be a member of a Society he is not.12. That a court cannot issue final orders disposing off a suit on an Application and as such, the Claimant claim of Kshs 1, 350, 000/= is laughable

7. We have considered the Applications, the affidavits, documents and the submissions filed, and the first question that we must first answer before we deal with the prayers in the applications is, was there a live suit to begin with by the time the Applications were filed?

Was there a live suit to begin with by the time the Applications were filed? 8. The beginning point is to state that the fundamental principles of justice are enshrined in the entire Constitution and specifically in Article 159 of the Constitution which mandates this Tribunal as any other Court to serve substantive justice to all the parties, and where there is a clear procedure for redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed. Accordingly, it is the work of this Tribunal to first consider whether the procedure for reinstituting the case was followed, and followed strictly as the case stood dismissed by 16th December, 2021.

9. In this particular case, first, there is no evidence to suggest that the Claimant even attempted to follow the procedure provided in Order 12 Rule 6 to have the case reinstated. Order 12 Rule 6 mandates a party to specifically make an Application for the reinstatement of a suit.

10. Second, It’s a rule of equity that he who comes to equity must come with clean hands. The Claimant should have notified or brought to the attention of the Tribunal the fact that when he filed the first Application dated 27th January 2023, the suit had not been reinstated – it still stood dismissed. To enjoy a discretionary relief, a party must come to court with clean hands. The Claimant hasn't, and as such, this Tribunal will not exercise their discretion in his favor.Final orders: The Application dated 27. 1.2023, 2nd February, 2023 and 20. 4.2023 are all found to be without merit and are dismissed with costs to the Respondent.

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 MutaiMburu advocate holding brief for Opiyo advocate for the Claimant.Odhiambo advocate for the Respondent.Hon. J. Mwatsama - Deputy Chairperson Signed 3. 10. 2024