[2021] KECPT 249 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 456 OF 2013

OROKISE SACCO SOCIETY LIMITED.....................CLAIMANT

VERSUS

SAMUEL WAWERU GIKURU..................................RESPONDENT

RULING

The Respondent has filed two Notice of Motion Applications, dated 13th December 2017 and 16th May 2018 respectively, seeking various orders;

(a) The Application of 13th December 2017 seeks to have this Tribunal to suspend the running of time for 60 days pending the hearing and determination of the appeal dated 24/11/2017; and

(b) The Application dated 16th May 2018 seeks to have this Tribunal to stay execution of the Decree pending the hearing and determination of the Application of 13th December 2017.

We have read and considered the Pleadings and elaborate submissions of both parties, which have assisted this Tribunal to come to the determination of these present issues.

ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties, we have framed the following issues for determination:

a. Whether this Tribunal has jurisdiction to suspend time pending hearing and determination of an Appeal; and

b. Whether justifiable grounds have been proffered to this Tribunal to warrant issuance of stay orders.

ANALYSIS OF THE ISSUES

a. Whether this Tribunal has jurisdiction to suspend time pending hearing and determination of an Appeal

The Respondent has posited that he has filed an Appeal dated 24/11/2017. His argument is that the said Appeal will be merely an academic exercise unless this court suspends time for 60 days to allow for hearing and determination of the Appeal. Does this Tribunal have the powers to suspend time?

Order 50 Rule 6 of the Civil Procedure Rules provide as follows:

“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.”

This is the only instance hat this Tribunal is clothed with any jurisdiction to enlarge time. For clarity, the Tribunal is not empowered to suspend time, and as such, this is a prayer that cannot be sustained. The Respondent is relying on Sections 1A, 3 and 3A of the Civil Procedure Act, without demonstrating the avenue through which the Tribunal can make an act of ‘suspending time.’

We note that jurisdiction, to mean power to take an action, is preferred by law. It cannot be assumed, or crafted into existence by circumstances. The Respondent has failed to demonstrate under what law the prayer to suspend time is made, and the finding of this Tribunal is, there is no such law. For which reason, we find that this prayer is unsustainable, and must thus fail.

In any case, even if this Tribunal had time to so suspend time for 60 days [and the finding of this Tribunal still stands in the negative], it has been 3 years and 9 months since this Application was made. There is nothing to indicate that there is any progress made in the appellate court. The prayer is overtaken by events.

b.Whether justifiable grounds have been proffered to this Tribunal to warrant issuance of stay orders.

We note that the Appeal was filed on 24th November 2017, and the Respondent has not demonstrated to this Tribunal the progress thereof. Stay orders are equitable orders, and a party must demonstrate that they have acted in good faith [whoever comes to equity must come with clean hands], and demonstrate concerted efforts to have justice done and seen to be done timeously [equity aids the vigilant and not the indolent].

The Respondent has slept on any rights for equitable remedies the moment the Respondent failed to take any action on the case for more than 3 years. It is appropriate for this Tribunal to invoke the doctrine of laches. The court in determining whether to extend time in the case of Nicholas Kiptoo Arap Korir Salat -vs- the Independent Electoral & Boundaries Commission & 7 Others (2014) eKLR set out the following as the guiding principles:

“(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;

(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court

(3) Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis;

(4) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;

(5) Whether there will be any prejudice suffered by the Respondents if the extension is granted;

(6) Whether the Application has been brought without undue delay; and

(7) Whether in certain cases, like election petitions, public interest should be a consideration for extending time.”

The Respondent’s Application in the present case smacks of bad faith, unreasonable and undue delay, and more so, no basis has been laid to the satisfaction of this Tribunal to warrant the stay orders and enlargement of time. It is important that litigation comes to an end, and the Decree Holder be permitted to enjoy the fruits of their judgment, unless there is an order from the Appellate court staying the decision, as is contemplated in Order 46 Rule 6, which provides as follows:

“ 1. No Appeal or second appeal shall operate as a stay of execution or proceedings under a Decree or Order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the court appealed from, the court to which such Appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the Appellate court to have such order set aside.

(2) No order for stay of execution shall be made under subrule (1) unless-

a. the court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and

b. such security as the court orders for the due performance of such Decree or Order as may ultimately be binding on him has been given by the Applicant.”

The Respondent’s Application has not in the least satisfied this Tribunal that the Respondent is eligible to the benefits of equity, and as such, the second issue for determination of the Application is found against the Respondent.

In the interest of justice, we find that the Orders sought should not be granted and the applications dated 13th December 2017 and 16th May 2018 must fail.

ORDERS

We therefore Order as follows:

(i) The Respondent’s Applications dated 13th December 2017 and 16th May 2018 are dismissed with costs.

(ii) Judgment Creditor to proceed with execution proceedings

Ruling signed, dated and delivered virtually at Nairobi this 2ndday of September,2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Miss Gachungu holding brief for Ambani Advocate for Judgment Creditor/Respondent

Wanga holding brief for Ndegwa for Judgment Debtor

We pray for 30 days stay of execution

Miss Gachungu for Judgment Creditor: No objection

Order : 30 days stay of execution granted .

Hon. B. Kimemia Chairperson Signed 2. 9.2021