[2023] KECPT 773 (KLR)

Odari v Stima Sacco Society Limited (Tribunal Case 13 of 2011) [2023] KECPT 773 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 773 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 13 of 2011

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

September 21, 2023

Between

Paul Erastus Odari

Claimant

and

Stima Sacco Society Limited

Respondent

Ruling

Statement of Facts 1. The facts of this case are well known beginning with the Plaint filed on 17th September, 2011 and the ruling of this Tribunal on the 19th August, 2021.

2. This Tribunal found in favour of the Claimant against the Respondent for a refund of the sum of ksh 600,000/=.

3. On 6th May, 2022, a decree was extracted in the sum of ksh 1,368,0000/= being the Principal amount and interest, with ksh 180,040/= also being awarded as the cost of the suit.Stephen Ojambo Owaki suing as an administrator of the estate of the late Claimant, later on 11th May, 2022 filed an Application seeking among others;i.That this Tribunal ne pleased to recall, review and vary the decision of the Tribunal judgement delivered of the 16th day of June 2021 and allow the Claim as prayed for in the amended plaint.ii.That this Tribunal be pleased to recall, review and vary the decision of the Tribunal’s Judgement delivered on the 26th day of June 2021 and award the Plaintiffs the claimed general damages,iii.That this Tribunal be at liberty to make any other orders in the interest of justice.

4. The Plaintiff in this matter or Application believes that this Tribunal overlooked key facts in its judgement which has occasioned injustice and prejudice to the estate of the deceased Claimant. To the Plaintiff, some documents were never placed in the court file as they were in advertently or otherwise misplaced and as such, he believes, this Tribunal did not have the benefit to look at the documents before delivering judgement.Power of a court to review its own judgement is exercised within the framework of the Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.Section 80 of the Civil Procedure Act provides that:“80. Review Any person who considers himself aggrieved—(a)by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”Order 45 Rule 1 of the Civil Procedure Rules provides that:(1)“Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”Section 80 gives the power of review while Order 45 Rule 1 sets out the rules. The two sections give the scope of review and jurisdiction and they limit the grounds for review to the following:a.Discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or the order made.b.On account of some mistake or error apparent on the surface of the record.c.For any other sufficient reason and whatever the ground there is a requirement that the Application has to be made without unreasonable delay.In Mwihoko Housing Co. Ltd v Equity Building Society [2007] eKLR 171, the Court of Appeal said that:“it is trite law, that review may be granted whenever the court consider that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be sufficient ground of review that another judge could have taken a different view of the matter. Nor can it be ground of review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law.”

5. We have considered the Application, the Submissions in support and in opposition and having examined the evidence presented, we find no anomalies or discovery of new evidence to necessitate us to review our judgement.It is important to note that in as much as the directions we issued on 25th September, 2020, were not complied with in form (payslips not filed in original), the directions were still complied with in substance ( the payslips were filed in copies) and we admitted them as evidence, guided by Article 159 (2) (d) of the Constitution which states that justice should be administered by the courts without undue regard to technicalities. It was our unanimous finding that the procedural defect or irregularity of filing in copies and not originals is a curable defect, and we went ahead to look at the payslips with our tabulations well captured in page 10 and 11 of our judgement. As such, it is not factually correct to say that we did not have the benefit of looking at the payslips.The Notice of Motion Application dated 11th May, 2022 is dismissed with costs, and for the avoidance of doubt, our judgement of 9th September, 2021 still sands, the same as the decree signed on 6th May, 2022.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHMue advocate for the RespondentAyecha advocate holding brief for Omboko advocate for Claimant/applicantRuling as delivered on 21. 9.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023