[2024] KECPT 212 (KLR)

Osiemo v Latema Sacco Society Limited & another (Tribunal Case 301/E349 of 2022) [2024] KECPT 212 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 212 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 301/E349 of 2022

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

March 7, 2024

Between

Moses Omboga Osiemo

Claimant

and

Latema Sacco Society Limited

1st Respondent

Jephy’s Auctioneers

2nd Respondent

Ruling

1. 1st Respondent made an Application dated 3rd October, 2023 for stay of execution of the Decree and a review of the judgment of this Tribunal of 21st September 2023.

2. The Claimant made an Application dated 30. 10. 2023 seeking police assistance in implementing the court judgment of 21. 9.2023.

3. Cooperative Bank made an Objector Application dated 31st October, 2023.

4. Victor chweya Nyambane and Abedinego Okenye Ongata made Objector Applications both seeking stay of execution of the Decree dated 26. 9.2023 and lifting of the execution of some proclaimed properties.

Analysis and Determination of the Applications Review Application 5. The beginning points in considering Applications for review is to examine the provisions of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of theCivil Procedure Rules. Section 80 gives the power while Order 45 sets the Rules. The two lay down the jurisdiction and scope and they limit review to the following grounds:i.Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant applying for review or could not be produced by him at the time when the decree was passed or the order made.ii.On account of some mistake or error apparent on the face of the record.iii.If there is sufficient reason and the Application has been made without unreasonable delay courts have insisted that in cases of considering a review to correct an error or omission apparent on the part of the court like in our particular case that error or omission must be self- evident and should not require an elaborate argument to be established.

6. In this particular case, we are not persuaded that any new and important piece of material evidence has been presented, neither are we persuaded that there was an error apparent to our findings of 21st September, 2023 and as such no sufficient reason has been demonstrated to persuade us to review our orders. The orders and findings we made and the decree subsequent, to restate still stand.

Objector Applications 7. Objector Applications mainly arise in cases where a party or parties are seeking a stay of execution on the grounds that those parties have either legal, beneficial or equitable interest in the property proclaimed for attachment like in this particular case. Order 22 Rule 51 (1) of theCivil Procedure Rulesprovided that:“Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a decree may at any time prior to payment out of the proceeds of sale of such property give notice in writing to the court and to all parties to the decree-holder, of his objection to the attachment of such property. “

8. To mean, the Objector has the burden of proving that he is entitled to or has legal or equitable interest on the whole or part of the attached property.

9. From evidence presented, we are not persuaded that Cooperative Bank has legal or equitable interest in the proclaimed properties, but in relation to log books for KCQ 122A and KCK 038F, the Objectors (Abedinego Okenye Ongata and Victor Chweya Nyambane) have proved their legal interest in the two motor vehicles and as such this Tribunal orders the discharge of the two motor vehicles proclaimed as the Judgment- Debtor is not the legal owner of the properties proclaimed.

Wayforward 10. It is important to emphasize that court decisions or orders are not meant for cosmetic purposes and should be complied with strictly as without doing so, we run the risk of descending into a state of chaos where the rule of law and administration of justice is not safeguarded to see it any other way, is to open the door to anarchy.

11. Given that the decree this Tribunal gave on 26. 9.2023 is still not yet surcharged, it is our duty as a Tribunal in the administration of justice not to allow orders to be seen to be made in vain as that will impact negatively on the rule of law and undermine confidence in our legal system - it will expose this Tribunal to ridicule.

12. In Republic Versus County Chief Officer, Finance and Economic Planning, Nairobi City County (EX parte David Mugo Mwangi [2018] eKLR, the court made the following observation:…once a court order is made in a suit, the same is valid unless set aside on review or on Appeal.”

13. As such we urge the decree holder to consider or look for other modes of execution which do not infringe on third party rights, and this Tribunal will indulge him until its judgment of 21. 9.2023 is realized strictly and complied with.

Final Orders 14. i.The Application dated 3. 10. 2023 for stay of execution of the Decree and a review of the judgment of this Tribunal of 21. 9.2023 is dismissed with costs.ii.The Objector Application dated 31. 10. 2023 fails and is dismissed with costs.iii.The Objector Applications seeking stay of execution of the Decree dated 26. 9.2023, and lifting of the execution and proclamation of KCQ 122A and KCK 038F succeeds and the proclamation of KCQ122A and KCK 038F has been lifted with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahAuga advocate for 1st RespondentMoriasi advocate for 2nd ObjectorSigilai advocate for Objector BankKagwiria advcote for Claimant.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024Sigilai advocate – I pray for 30 days stay of executionKagwiria advcote – They should deposit the decretal sum.Order – Stay of execution 21 days .HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024