[2021] KECPT 529 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.55 OF 2001

RWAMA FARMERS CO-OPERATIVE SOCIETY LIMITED................CLAIMANT

VERSUS

MURAMATI SACCO SOCIETY LIMITED.......................................... RESPONDENT

RULING

The Decree Holder has moved this Tribunal vide the Chamber Summons Application dated 2. 3.2019, seeking for Orders inter alia:

a. That the Honourable Tribunal be pleased to grant leave to the Decree Holder to execute the Decree issued on 23. 6.2004;

b. Spent;

c. Costs .

The Application is supported by the grounds on its face and the Affidavit sworn by Harriet Nyamboki on even date.

The gist of the Application is that the Decree Holder obtained judgment on its counterclaim for Kshs.18,444,664. 88/= on 23. 6.2004. That subsequently, a Decree was issued on 23. 6.2004. That it intends to execute the said Decree but the same has been caught up with limitations of actions.

That there are good reasons why the Decree was not executed within the time limited by law. They include:

a. That the file was archived and that retrieving the same tool long time.

b. That the Decree Holder was unable to trace assets that could be attached;

c. That the loan advanced to the Judgment Debtor is yet to be settled.

d. That the delay in instituting the Application is neither deliberate nor intentional;

e. That the decree holder stands to lose a huge amount of money if the Application is not allowed.

Respondent’s Case

Judgment Debtor has opposed the Application vide the Replying Affidavit sworn by its Chairman, Julius Waweru. The gist of the Judgment Debtor’s opposition to the Application is that the same is time barred, irredeemable, irreconcilable as it has been brought 15 years after the Judgment in the claim was delivered. That the delay in executing the said judgment within the time limited by law has not been explained at all. That the Decree Holder’s right to execute the said judgment lapsed years ago.

That even before originating this Application, the Decree Holder ought to have addressed the following issues:-

a. The need to comply with the provisions of Order 3 Rule 9 of the Civil Procedure Rules;

b. The need to resuscitate the claim; and

c. The need for the near counsel to seek leave to prosecute the Application after judgment.

That without prejudice to the foregoing, the Judgment Debtor does not owe the Decree Holder the sums sought to be executed. That the said decretal amount was recovered vide garnishee proceedings.

That the Judgment Debtor is not telling the Tribunal that the Judgment Debtor Appealed against the Decree of the Tribunal at the High Court vide H.C.NO. 632 OF 2002 whereupon the Appeal was settled by way of a consent recorded by both parties.

That in the circumstances, the Application is unmerited and should be dismissed with costs.

Issues for determination:

The Decree Holder’s Application dated 2. 3.2019 has presented the following issues for determination:

a. Whether the Decree Holder has established a proper basis to warrant extension of time to execute a decree;

b. What Orders are available in the circumstances.

Limitation on execution of Decree

The law governing limitation of time within party can execute a judgment is section 4 (4) of the Limitation of Actions Act (Cap 22) Laws of Kenya it provides:

“ 4 (4) an action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods), the date of the default in making the payment or delivery in question, in respect of a judgment debt may be recovered after the expiration of 6 years from the date on which the interest became due.”

The court in the case of Hudson Moffat Mbue -vs- Settlement Fund Trustees & 3 others, ELC NO. 5704 OF 1992interpreted the meaning of Section 4 (4) above in the following terms:-

“ What I understand the law to be is that once a judgment has been rendered, execution of that judgment must be commenced within the 12 year period otherwise you cannot obtain a judgment and fail to do anything about it and after 12 years, have expired, seeks to execute the same. Section 4 (4) of the limitation of Actions will bar you from carrying on which such execution. “

Whilst Section 4 (4) of the Act provide for limitation of time to execute a judgment, a question arises as to whether there exist a law that provides for extension of time within which to execute a judgment or Decree. We find a perfect answer to this question in the holding of the court in the case of John Mwaniki Mwaura- vs- John Ndonyo Njuguna [2018]eKLR. At paragraph 10 thereof, the court states thus:

“ It can be deduced from Section 4 (4) above that the limitation period for executing judgments is therefore 12 years. The Applicant can only benefit if there is a provision in law which allows him an extension of time. Part III of the limitation of Actions Act, which provides for extension of limitation periods has been cited. I have gone through this part of the statute but nowhere does it provide for an extension of a limitation period in relation to judgment. indeed, counsel for the Applicant referred me to no particular provision of part III as giving this court jurisdiction to extend the time period given for executing judgments. Section 95 of the Civil procedure Act, only allows the court discretion to extend time for periods which have been prescribed under the said Act. This thus cannot cover periods covered under the limitation of Actions Act, which is a different statute. I do not see how section 1A, or 1B of the Civil Procedure Act, can assist the Application. These are general provisions of the law which direct the court to be efficacious and efficient in the discharge of its duties. Order 57 rule 1 is a general provision of the law directing that Application be filed by way of Notice of Motion. Order 50 Rule 6, does give power to the court to extend the time frame given in the Rules directing the period within which to do certain acts. This cannot extend periods under the limitation of Actions Act. Article 15 a(2) (d) of the constitution enjoins the court to do justice without undue regard to procedural technicalities. However, limitation periods cannot be said to be procedural technicalities for they are provisions of substantive law, and in my view, Article 15 a (2) (d) cannot be used to extend limitation periods..”

We have extensively set out the law relating to limitation of Actions as far as judgments are concerned so as put the issues in the instant application into perspective.

What is apparent is that the limitation of Actions Act does not provide for extension of time to execute a decree. As is also clear, no other law provides for this the import of this position of law to the circumstances of this Application is that we do not have jurisdiction to extend time with which the Decree Holder may execute the judgment delivered on 23. 6.2004.

The consequence of this finding is that the Decree Holder’s Application dated 2. 3.2019 is unmerited and we hereby dismiss it with costs to the Judgment Debtor. Orders accordingly.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 4. 3.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 4. 3.2021

B. AKUSALA MEMBER SIGNED 4. 3.2021

Muriuki for Respondent

Nekesa holding brief for Mukhalia for Applicant

HON. B. KIMEMIA CHAIRPERSON SIGNED 4. 3.2021