[2025] KECPT 230 (KLR)

Ruttoh v Kosgei & 2 others (Tribunal Case 274 of 2020) [2025] KECPT 230 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 230 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 274 of 2020

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

March 27, 2025

Between

Paul Kiprotich Ruttoh

Claimant

and

Elijah Kosgei & 2 others

Respondent

Ruling

1. Application for determination is dated 22. 5.2023. The Application seeks for orders:a.spentb.The execution of the order given on 12th April, 2023 is hereby stayed pending interparty hearing and determination of this application.c.The order given on 12th April, 2023 is hereby set aside.d.Costs of the Application are granted to the Respondents/Applicants.The grounds of the Application are that orders of 12/4/2023 require the Respondent to release assorted documents to the Claimant and Respondent Application claims the said order was given without according the Respondent a chance to be heard.

2. Claimant is supported by Supporting Affidavit of Elijah Kosgei sworn on 22/5/2023 where he stated that Tribunal gave orders on 12/4/2023 requiring them to release assorted documents to Claimant/Respondent. The orders were given during a date for mention contrary to legitimate expectation of parties before the Tribunal.The Applicants avers they were unaware of the date when orders were issued as they were not informed.Further Applicants avers the orders are trial in nature and in essence deprive Respondent of having fundamental rights.There are layers of documents being released being in the hands of a 3rd Party i.e. Claimant/Respondent who is now a competitor. Application was made on 18/5/2023 without undue duly.

3. The application is opposed in Claimant/Respondent filed Replying Affidavit dated 21/3/2024. He responded to the Application and stated on 10/12/2021 Advocates representing both parties were present and his advocate intended he would file an application to be allowed to access vital books accounts as well as financial statements dated dating from 2017 to enable them prepare for hearing.The application was done and changes for Application date 22/12/2021 was scheduled for 21/3/2022 where the Respondent/Applicant did not appear and directions given for application to be commenced by way of Written submissions and mention to confirm compliance was on 4/7/2022. Respondent/Applicant on 4/7/2022 had not filed any response and sought for time to enable them file a response. They were given an opportunity of 14 days and a further mention was given for 17/11/2022 and Respondent/Applicant were granted yet another opportunity to 12/4/2023, as such the orders were granted as prayed.Claimant avers the Applicant were all ready and were aware of the circumstances.

4. The Claimant avers under Article 10 and 35 of the Constitution of Kenya as well as Cooperative Society ACT. It provides for freedom of information & Act allows for member to access books of account and financial statement to promote transparency and accountability and good governance.He denied belonging to another society as alluded by the Applicant.The documents requested for are public documents and society Respondent need to be transparent.Having looked into the Applicants response, the issue for determination is whether the orders given on 12/4/2023 ought to be vacated?The Applicant states the orders were given exparte and they were unaware of the date when the said orders were granted.The Claimant/Respondent avers the Applicants did not file any response to the application despite the same being served upon them almost an year before the orders were granted.

5. To this end then the Tribunal checks Claimants records to confirm the argument of the Parties.

6. We note the Claimant filed an application dated 22/12/2021 which was served on the Respondent.On 22/3/2022 the parties appeared before the Tribunal for directions on the application.The Claimants counsel was present and no appearance by the Respondents counsel.The Tribunal gave directions for the Respondent to file response to the application dated 22/12/2021 and matter was to be mentioned on 4/7/2022. On 4/7/2022 both parties were represented Nduku Advocate for the Claimant and Ms. Korir holding brief for Ms. Ireri advocate for the Respondent.Ms. Korir for the Respondent requested for leave to file a response to the application dated 22/12/2021 and file written submissions.Tribunal orders were: Respondent to file their response 14 days from 4/7/2022 as well as parties to file written submissions and a further date of 17/11/2022 was given.On 17/11/2022 was a National Holiday and matter was mentioned on 21/11/2022 and there was no appearance by both parties leading Tribunal to issue another date of 12/4/2023 for mention on the said Application.On 12/4/2023 Nduku Advocate was present for Claimant and no appearance by Korir Advocate .As of 12/4/2023 the Respondent had not filed their response to the Application dated 22/12/2021. It was the Claimants Advocate who requested for the same to be allowed as prayed.

7. The application was to be canvassed by way of Written submissions. The Respondent had not filled her Response if at all to allow Claimant file their Written submissions and submit on Admission on opposition.In the case of Misc App E165 OF 2023 -Simon Nyabaro Ombao vs Bega Hamisi Keya.DKN Magare J found an application dated 23/6/2023 not merited.The Applicant then delayed in filing an Appeal and despite being present when Judgment was being delivered took 8 months to file an Application.His Application was denied.In High Court Case of John Gacheya Munda Vs Francis Murire alias Francis Muthini & another 2016 eKLR the Court stated:“There is doubt the Applicant has shown substantial loss would occur unless stay is granted. However, I will be guided by a greater sense of Justice. Court of Law never said that, with the entry of the pending principal in Law and the anchorage of substantive Justice in the Constitution as a principal of justice, courts should always have the wider sense of justice in interpreting the prescriptions of Law designed for grant of relief.”

8. From conduct of the Applicant, the Application dated 22/5/2023 we find the conduct not being truthful as they did not respond to an Application more than 1 year later and now are crying wolf.No reason has been advanced by Applicant why they did not respond to the Application that was pending on 22/12/2021 despite them attending Court thereafter and directions being given.The Application now seeks not to respond but gives reason why the application dated 22/12/2021 ought now to have been allowed. This ought to have been in their response to the Application.We agree to the sentiment of the Judge in the Labour Appeal Court of South Africa in National Union of Minerals Vs Council for Mineral Technology (1998) ZALAC 22 that:“The approach is that the court has a direction to be exercised Judicially upon a consideration of all the facts and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospect of success and the importance of the case. These facts are interrelated they are not individually decisive. What is needed is an object conspectus of the facts. A slight delay and good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospect of success they tend to compensate for a long delay.There is a further principal which is applied and that is that without a reliable and acceptable explanation for the delay, the prospects of success are intending and without prospects of success, no matter how good the explanation for the delay, an application for conduct shall be refused.”UpshotAs such the Application dated 22/5/2023 is found to be without merit and is dismissed with costs,Mention for pretrial directions on 18/9/2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia - Chairperson Signed 27. 03. 2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 03. 2025Hon. Beatrice Sawe - Member Signed 27. 03. 2025Hon. Fridah Lotuiya - Member Signed 27. 03. 2025Hon. Philip Gichuki - Member Signed 27. 03. 2025Hon. Michael Chesikaw - Member Signed 27. 03. 2025Hon. Paul Aol - Member Signed 27. 03. 2025Tribunal Clerk MutaiMs. Chelegui holding brief for Ms. Kimei advocate for Respondent/Applicant.Nduhiu advocate for the ClaimantHon. J. Mwatsama - Deputy Chairperson Signed 27. 03. 2025