[2024] KECPT 1536 (KLR)

Oduor v Asili Sacco Society Ltd (Tribunal Case 342 of 2015) [2024] KECPT 1536 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1536 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 342 of 2015

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

September 26, 2024

Between

Maurice Onyango Oduor

Claimant

and

Asili Sacco Society Ltd

Respondent

Ruling

1. The Notice of Motion Application dated 20th February, 2024 is brought under Section 3A, 1A, 1B of the Civil Procedure Act Chapter 21, Order 51 Rule 1, Order 8 Rule 1 (2)(6), 2(1) 5 and 7 of the Civil Procedure Rules, Section 78(5) of the Co-operative Societies Act No. 12 of 1997, Rule 6 and 7 of the Co-operative Tribunal (Practice and Procedures) Rules 2009 seeking among others orders:i.Spent.ii.That the Honourable Court be pleased to set aside the proceedings of 8/2/2024 and the Respondent/Applicant be granted unconditional leave to amend their Statement of Defence and Counter Claim and the suit be heard afresh.iii.That in the alternative, the Claimant’s amended Statement of Claim dated 19th January, 2023 be expunged from the Court records.

2. The Application was based on the ground set out in the Supporting Affidavit of Tom Magutu Getange:a.That the Claimant/Respondent ambushed the Counsel for the Respondent in Court with an Amended Statement of Claim without previously serving the Respondent/Applicant.b.That the Respondent/Applicant was not served with the alleged Amended Statement of Claim so as to be seized of it and proceed to amend its Defence and Counterclaim.c.That the Respondent/Applicant has never been served with the Application to amend the Statement of Claim by the Claimant/Respondent and the alleged service is false.d.That the Honourable Tribunal confirmed the matter for hearing on 8/11/2022, when the matter came up for pre-trial but later the Claimant/Respondent sneaked into the Court record an Application seeking to amend pleadings through the backdoor without serving the Application.e.That is the Application is not granted, the Applicant will suffer great prejudice as having not been granted its night to amend its pleadings in response to the Amended Statement of Claim.f.That there are weighty issues raised in the amended Statement of Claim, which will definitely call for amendment by the Respondent/Applicant before the matter would be set dow for hearing.g.That all along the Claimant/Respondent has not been keen to have the matter heard expeditiously.h.That it was the duty of the Claimant/Respondent to bring to the attention of the Applicant any amendment made to their pleadings after pre-trial had been completed.This Tribunal gave directions on 26th February, 2024 for the Applicant to serve all parties with further orders/directions given on 18th April, 2024 for the Application to be canvassed by way of Written Submissions.

3. The Applicant/Respondent filed his Submissions dated 13th May, 2024 raising among others issues that:i.The Claimant from 2015 did not take steps to prosecute his case until February 2021 when the Respondent filed an Application to strike out the suit for want of prosecution.ii.That when the suit came up for mention on 2nd October, 2023, the Claimant did not indicate that he had filed amended Statement of Claim and served the Respondent to enable the Respondent to respondent to the same.iii.That the Respondent was never served with the Application to amend the Statement of Claim. That it was not possible for a party who was never served with an Application to respond to it.iv.That the Claimant did not file any affidavit demonstrating that they served any document through the email, which makes the issue of service to be in doubt.v.That given the sequence of events, the principles of fair hearing demands that the Respondent should be granted leave to amend its pleadings in order to counter the amended Statement of Claim.vi.That it will be travesty of justice if the Respondent is denied the chance of amending their pleadings to adduce further evidence in order to counter the averments in the amended Statement of Claim.

4. The Claimant on his end, filed their Submissions on 30th May, 2024 raising among others issues that:i.Both parties had conducted their trials and by consent closed their cases and further by consent agreed on the duration to do the Submissions with the intention of taking a judgement date.ii.That the Respondent/Applicant was actually served with the Application to amend the Statement of Claim and their counsel on record even cross-examined the Claimant using the said amended Statement of claim, with the Claimant also putting his witness on the stand to defend the said amended Statement of Claim.iii.That service was done by email to the Applicant’s last confirmed and used email address in compliance with the Gazette Notice No. 3137 which directed parties on how to proceed with service during the Covid era.iv.That a competent counsel was on record representing the Applicant/Respondent and they did not oppose or raise any queries when the Claimant relied on his further statement which was a replica of the Amended statement of Claim.v.That the Applicant’s Respondents Witness testified and replied to the same amended Statement of claim and the documents used.vi.That this Application by the Respondent is an afterthought after their witness performed poorly on the stand and was unable to positively respond to some inquiries during cross-examination, and as such, the respondent want to open the matter afresh to help them fill the loopholes and come back without blemish.vii.That no intended Defence has been annexed and so the Court is not in a position to speculate what the Respondent’s Amended Statement of Defence would be if the Court’s discretion was exercised in their favour. That courts shouldn’t exercise their discretion in a vacuum.viii.That the Application has been brought in bad faith and is a complete abuse of the Court process, and looking at the age of the matter and its history, the matter should come to a close.

5. We have considered the Application and the Submissions filed, and the only question remaining for determination is as to whether this Tribunal should set aside the proceedings of 8th February, 2024 and hear the suit afresh.Should this Tribunal set aside the proceedings of 8th February, 2024 and hear the suit afresh.Our beginning point will be to look at the amended Statement of Claim; what new evidence it has brought fourth that was not in the initial statement of Claim, and whether the same was scrutinized by the Respondent or was used to the disadvantage of the Respondent.There was new evidence introduced in the amended statement of Claim, which include to mention but a few:a.The fact that not the whole of Kshs. 883,000/= was disbursed.b.That on Kshs. 336,693. 55/= was disbursed on 13 July, 2011. c.That the Respondent refused, ignored and/or neglect to disburse the remaining balance.d.The list and the value of the properties that were attached.

6. We have looked at the proceedings before Court on 8th February, 2024 and it is clear to us that from those proceedings, the following, which were part of the amended statement of Claim, came up and the counsel for the Respondent did not raise and query or alert the Court of any objections they had from there and they include:i.The fact that the Claim had been amended.ii.The fact that the Claimant only received Kshs. 336,000/= and not the whole amount of Kshs. 883,000/= that was to be disbursed.iii.The fact that what was taken from the Claimant (the items) are yet to be returned.iv.The fact that no evidence of how much was disbursed, and by which means or form, was made available in Court.From the Court proceedings, first, there is no evidence to indicate that the Respondent was not aware of the Fact that the Statement of Claim had been amended or that new matters with were not in filed proceedings had made their way to court.Second, from those same Court proceedings, it is clear to us that the counsel on record for the Respondent cross-examined or had the opportunity to cross-examine the Claimant on evidence he gave on the stand on oath, and as such, they have not been prejudicedThird, it is important to note that the Respondent has never been denied the opportunity to present their Defence, and/or challenge the Claimant’s case till the closing of the case. The intention to vigorously oppose the suit has always been clear, and counsel on record on 8th February, 2024 did that.

7. We are satisfied that the suit has been heard on merit till the point where the parties closed their cases, and to order a fresh trial will not serve the interests of justice as the case was filed in 2015 and the only pending action on the case is final judgement.

Final Orders. i.The Notice of Motion Application dated 20th February, 2024 is dismissed.

ii.Costs in the cause.

iii.Mention to confirm filing of Written Submissions on 21/1/2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk MutaiMr. Mboya advocate for the Claimant/RespondentMs. Omwenga advocate holding brief for Mr. Getange advocate for the Respondent/Applicant.Ms. Omwenga advocate- We request for stay pending Appeal.Mr. Mboya advocate – we are objecting.Tribunal order: No stay granted.Mention on 21. 1.2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024