[2023] KECPT 927 (KLR)

Njuguna v Kenya China Diaspora Sacco Society Limited (Tribunal Case E293/243 of 2022) [2023] KECPT 927 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 927 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E293/243 of 2022

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

August 31, 2023

Between

Waitara Mburu Njuguna

Claimant

and

Kenya China Diaspora Sacco Society Limited

Respondent

Ruling

Statement of Facts 1. The Claimant was a member of the Respondent’s Sacco until 23rd November, 2021 when he applied to withdraw his membership from the Sacco. At the time the Claimant applied to withdraw his membership, his total monthly contribution and savings stood at a figure of ksh 422,000/= which the Respondent agreed to refund.The Respondent has paid back the Claimant the whole total sum of ksh 422,000/= on various dates as captured below:Payment in respect of transfer of shares 15,000/=

On 16th December 2021 90,000/=

On 8th March 2022 50,000/=

On 14th March 2022 60,000/=

On 3rd May 2022 50,000/=

On 20th August 2022 57,000/=

On October 2022 100,000/=

TOTAL 422,000/=

2. The Claimant had come to court seeking among others:1. Order to direct the Respondent to refund all of his contributions.2. Order directing the Respondent to pay his dividends for the period his contributions had not been refunded,3. Damages for unlawful withholding of his contributions after withdrawal of membership,4. Costs incidental to recovery of the amounts owed.All other issues have been spent except the issues relating to costs.

Is a Claimant Still Entitled to Costs Even if all Other Prayers Have Been Spent? 3. On costs Section 27of the Civil Procedure Act provides that:“27 (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.”In Cecilia Karuru Ngayu v Barclays Bank of Kenya and another [2016] eKLR, the Court stated as follows:““…To my mind, in determining the issues of costs, the court is entitled to look at inter alia (i)the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which eventually led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated, (vii) the relationship between the parties and (viii) the need to promote reconciliation amongst the disputing parties pursuant to Article 159 (2) (c) of the Constitution. In other words, the court may not only consider the conduct of the party in the actual litigation, but the matters which led to the litigation, the eventual termination thereof and the likely consequences of the order for costs.I have considered the above points and the arguments advanced by the second defendant and in my considered opinion the conduct of the parties prior and after filing this suit is a relevant issue.”In DGM v EWG [2021] eKLR, the Court stated that:““A careful reading of Section 27 indicates that it is considered trite law that costs follow the cause/event, as described by Sir Dinshah Fardunji Mulla in his book The Code of Civil Procedure, 18th Edition, 2011 reprint 2012 at 540, is that costs must follow the event unless the court for some good reasons, orders otherwise.”Justice (Retired) Richard Kuloba on Judicial hints on Civil Procedure, 2nd Edition, at Page 101 also delves on the issue of costs, and states that:““The law of costs as it is understood by courts in Kenya, is this, that where a plaintiff comes to enforce a legal right and there has been no misconduct on his part or omission or neglect, and no vexatious or oppressive conduct is attributed to him, which would induce the court to deprive him of his costs, the court has no discretion and cannot take away the plaintiff’s right to costs. If the defendant, however innocently, has infringed a legal right of the plaintiff, the plaintiff is entitled to enforce his legal right and in the absence of any reason such as misconduct, is entitled to the costs of the suit as a matter of course.”

4. This Tribunal having considered all the issues it considers pertinent, which include the conduct of the parties in this matter, the whole subject of litigation in this matter, circumstances under which the Claimant came to court, the events in these proceedings and the stages at which those events terminated and the manner in which they terminated, and lastly the need to promote reconciliation among the parties in this matter, this court orders on costs as follows:We find the Respondent to pay the Claimant costs for the suit.Claimant to file Bill of Costs 14 days from today.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE - MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI - MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 31. 8.2023HON. PAUL AOL - MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahMs. Odhiambo advocate for the RespondentNo appearance by Claimant.HON. J. MWATSAMA DEPUTY - CHAIRPERSON SIGNED 31. 8.2023