[2024] KECPT 1714 (KLR)

Wambugu & 18 others v Ratta & another (Tribunal Case 211 of 2021) [2024] KECPT 1714 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1714 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 211 of 2021

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

October 3, 2024

Between

David Muthui Wambugu

1st Claimant

Willie Joseph Mutuku

2nd Claimant

Nyawira Peter Ndiritu

3rd Claimant

Lwal Vincent NO

4th Claimant

Njeru Duncan Muchangi

5th Claimant

Nganga Anthony Kamau

6th Claimant

Gituku Arthur Nganga

7th Claimant

John Joseph Muema

8th Claimant

Ndegwa Jonathan Gitahi

9th Claimant

Kuria Charles Thuo

10th Claimant

Shazima Oscar Mungahu

11th Claimant

Obuya George Nambubi

12th Claimant

Ojiambo Alban Huss

13th Claimant

Gochobi Akire Kaburia

14th Claimant

Wambui Benard Kamau

15th Claimant

Nganga Reuben Kanyonga

16th Claimant

Muhu Nicholus Njenga

17th Claimant

Muia Abednego Mutili

18th Claimant

Kamau Mwangi Perminus

19th Claimant

and

James Omwondo Ratta

1st Respondent

Balozi Co-operative Savings & Credit Society Limited

2nd Respondent

Ruling

1. The Claimant’s Notice of Motion dated 21st June, 2024 filed on 24th June, 2024 is before us for determination. Therein, the Claimant seeks the following orders: -a.Spent.b.That the Honorable Tribunal be pleased to grant a Stay of Execution of its judgement delivered on 23rd May, 2024. c.That the Honorable Tribunal be pleased to vacate, review, vary andor set aside its judgement delivered on 23rd May, 2024. d.That the 1st Respondent furnishes security for costs to the Applicants for an amount that this Court deems fit in the circumstances.e.That the Honorable Court do make any such further orders and issue any other relief it may deem fit to grant in the interest of justice.f.That the costs of this Application be in the cause.

2. The Application is premised on the grounds on the face of the Application and supported by the Affidavit of David Muthui Wambugu, sworn on 21st June, 2024. The Respondent responded to the Claimant’s Application vide the Replying Affidavit sworn by James Ondo Ratta on 22nd August, 2024.

Claimantapplicant’s Case. 3. The ClaimantApplicant’s grounds for the Application are that the Honorable Tribunal on 23rd May, 2023 dismissed the Applicant’s suit on account of an error apparent on the face of the record. That the Tribunal did not consider crucial evidence which was in the record and could have made the Tribunal find otherwise. That the Tribunal is against the weight of evidence on record. That the fact that the 1st Respondent is financially able to repay the loan owed to the Respondent was not considered by the Tribunal which evidence is fundamental in the case. That the Tribunal did not consider the correspondence between Claimants and the Respondents and did not analyze the extent to which the 1st Respondent is unable to meet his legal obligations before dismissing the Claim.That the Tribunal adjudicated on the matter and issued a judgement which is contrary to its earlier pronouncements in other matter with similar as the instant suit. That the Tribunal did not consider that the Respondent did not attend Court to controvert the averments of the Claimants.

Respondent’s Case. 4. The Respondent’s case against the Claimant’s Application for review is that the Application has no merit as there is no new evidence or error in the judgement delivered and the said judgement was well anchored in the Law. That the Affidavit the Claimant relies on is part of the records and not a new matter to warrant review. That the Application is frivolous and actuated by malice because the Applicant’s intention is to great lengths to ensure they have judgement in their favor even if it doesn’t abide by the law. That the Court is functus officio in this matter, having delivered a Judgement that is sound and well anchored in Law. That it is in the interest of justice, fair and expedient in all circumstances of the case that the Application is dismissed.

Analysis and Determination. 5. We have considered the documents filed by both parties in regard to this matter, we have also revisited the documents and evidence on record relating to the main suit together with the Written Submissions.The only issue for our consideration is whether or not the Claimant has established sufficient grounds for review of the Judgement herein.Order 45 Rule 1 Sub-rule (1) of the Civil Procedure Rules provides that any person considering himself aggrieved: -a.By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.By a decree or order from which no appeal is hereby allowed, and who from the discovery of new evidence and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgement to the Court which passed the decree or made the order without delay.Foremost, the Tribunal and any other Court of law for that matter, considers and determines cases on the basis of the evidence before it, whether adduced by one party ex-parte or interparty by both parties to a suit.

6. We note that the Claimant’s main grounds for the Application for review before us are: -1. That the Tribunal dismissed the Claimant’s suit on account of apparent error on the face of the record.2. That the Tribunal did not consider crucial evidence on record and the Tribunal’s decision is against the evidence on record.It is our considered view that the Claimants have not put forth any new important matter or evidence which was not within their knowledge or could not be produced at the time of Judgement, neither have they pointed out to the Tribunal any error apparent on the face of the record on which they rely on to seek orders of review. Further, the Claimants have not produced before the Tribunal other sufficient grounds to warrant review of the Tribunal Judgement.Whereas the Claimants have claimed that the Tribunal has made conflicting decisions on similar cases, they have not provided pleadings of such cases to enable the Tribunal to ascertain that the issues in such other alleged cases were so similar to the issues herein that it could not have been possible for the Tribunal to arrive at a different decision in this matter.

7. In the circumstances, we have found no ground to compel us to exercise the powers conferred upon the Tribunal under Section 80 of the Civil Procedure Rules. We place reliance on the Court of Appeal decision in Omote & Another –vs- Ogutu (Civil Appeal E005 of 2021)[2022] KENC 16441(KLR)(19th December 2022); in reaching our reasoning above and hold that the Claimants Notice of Motion Application dated 21st June, 2024 lacks merit and the same is hereby dismissed. We order each party to bear its own costs of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaINo appearance by partiesRuling delivered in absence of parties.Later,Evans Gichuki present