[2023] KECPT 741 (KLR)

Orokise Sacco Society Limited v Gikuru (Tribunal Case 456 of 2013) [2023] KECPT 741 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 741 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 456 of 2013

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

August 31, 2023

Between

Orokise Sacco Society Limited

Respondent

and

Samuel waweru Gikuru

Applicant

Ruling

1. This ruling dispenses with the Applicant’s Notice of Motion Application dated December 6, 2021 supported by an Affidavit sworn by the applicant, Samuel Waweru Gikuru, and brought under order 9 rule 9 and order 42 rule 6 of the Civil Procedure Rules and section 79G of the Civil Procedure Act and all other enabling provisions of the Law. The Application seeks the following orders:1. That the Application be certified urgent and be heard exparte in the first instance.2. That the firm of Gichuki King’ara & Company Advocates be granted leave to come on record for the Applicant herein.3. That this Honourable Court be pleased to grant leave for the Applicant to file an appeal out of time against the ruling delivered on the 2nd of September 2021 in Tribunal case no. 456 of 2012. 4.That this Honourable Court be pleased to grant a stay of proceedings in Tribunal Case No. 456 of 2012 pending inter parties hearing and determination of this Application and the intended Appeal.5. That this Honourable court be pleased to grant a stay of a stay of execution of the rulings delivered on the 21st of November 2017 and the 2nd of September 2021 in Tribunal case no. 456 of 2012 pending interparties hearing and determination of this application and the intended Appeal.6. That costs of this Application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: This Tribunal delivered a ruling on September 2, 2021 against the Applicant. Unbeknownst to the Applicant the law firm acting for him then had been deregistered. The Applicant came to know of this in the last week of September and that is when he retained the firm herein. By that time the 30 day Stay of Execution has lapsed as well as the 30 day grace period for Appeal under section 81 of the Cooperative Act had also lapsed.

3. Both parties filed their submissions. The Applicants relied on the case of Mombasa County GovernmentvKenya Ferry Services &anor (2019) eKLR where the Supreme Court dealt with the issue of extension of time and came with the following underlying principles: Extension of time is the discretion of the court

The party who seeks extension has the burden of laying the basis

Discretion to be exercised on a case by case basis

Delay in bringing the application.

The Applicants submit that there was no unreasonable delay in filing the Appeal and therefore, the orders sought should be granted. The Applicants also submit that they will suffer irreparable and substantial loss should the orders sought not be granted.

4. The Claimant/Respondent on its submissions reiterates the contents of their Replying Affidavit that the Application is frivolous and vexatious. The Respondents submit that the Tribunal has no jurisdiction to entertain the Appeal out of time as that is a preserve for the high court pursuant to section 79G of the Civil Procedure Act. The Respondent further submits that the Applicant has not furnished a sufficient cause why he did not file an Appeal in the High Court out of time.

Analysis 5. The question that the Tribunal asks itself is whether the Applicant can be allowed to lodge the Appeal in the High Court out of time.In answering this question, the Tribunal finds it fit to address the issue of Jurisdiction first.On the issue of Jurisdiction of granting leave to Appeal out of time, the Tribunal is guided by section 81 of the CooperativeSocieties Act which provides that“Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal, may within 30 days of such order, appeal against such order to the High Court, provided that the High Court may, where it is satisfied that there is sufficient reason for so doing, extend the said period of 30 days...”The above section of the CooperativeSocieties Act provides very clearly that the High Court is the one to grant any leave to extend the time for Appeal. The Section does not limit itself to only judgments but any order that the Tribunal may give. The right fora for the application for extension of time for Appeal by the Applicant should therefore have been the High Court. We find that the Tribunal has no Jurisdiction to grant leave to file an Appeal in the High Court out of time.

6. The Tribunal having found that it has no jurisdiction to grant leave to file an appeal out of time, consequently finds that the grant of stay of execution pending the appeal, and stay of proceedings are all pegged on the extension of time, and thus the right jurisdiction for grant of such orders is still the High Court. We will therefore not dwell on the other issues of delay, prejudice and whether the Appeal is arguable or not owing to the above funding.

7. Flowing from above, the final orders are that:1. The notice of motion application dated December 6, 2021 is hereby dismissed.2. The claimant/respondent is awarded the costs of this application.

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 JemimahMiss Gachingu holding brief for Ambani for Claimant.Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023