[2023] KECPT 415 (KLR)
The Tribunal held that while the right to a fair hearing is fundamental, the 4th Respondent had a reasonable opportunity to apply for the substitution of its witness and to file an amended witness statement prior to the hearing date but failed to do so. The Tribunal found that the 4th Respondent's delay and attempt...
Source-derived case information.
- Citation
- [2023] KECPT 415 (KLR)
- Parties
- Claimant: Peter Muasya Wilfred; Respondent: Frederick Kamande Karanja; Respondent: Francis Kimani; Respondent: Peter Muthike; Respondent: Muka Mukuu Farmers Co-operative Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 242 of 2013
- Procedural Posture
- Tribunal Application / Ruling on Notice of Motion to Substitute Witness and Set Aside Directions
- Outcome
- application dismissed with costs
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Witness Substitution, Fair Hearing Rights, Application to Set Aside Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muasya Wilfred
Claimant
Frederick Kamande Karanja
Respondent
Francis Kimani
Respondent
Peter Muthike
Respondent
Muka Mukuu Farmers Co-operative Society Limited
Respondent
Procedural Posture
Tribunal Application / Ruling on Notice of Motion to Substitute Witness and Set Aside Directions
Legal Issues
- 1 Whether the 4th Respondent should be allowed to substitute its witness after the hearing date had been set.
- 2 Whether the 4th Respondent was denied a fair hearing by not being allowed to call its witness.
- 3 Whether the Tribunal's directions issued on 18th May 2022 should be reviewed and set aside.
Ratio Decidendi
The Tribunal held that while the right to a fair hearing is fundamental, the 4th Respondent had a reasonable opportunity to apply for the substitution of its witness and to file an amended witness statement prior to the hearing date but failed to do so. The Tribunal found that the 4th Respondent's delay and attempt to substitute the witness only when the matter was called for hearing did not meet the threshold for setting aside the Tribunal's earlier directions. The application was therefore dismissed, as the 4th Respondent was not denied a fair hearing but rather failed to act with due diligence.
Court Disposition
application dismissed with costs
Orders
- The 4th Respondent's application dated May 31, 2022 and filed on June 7, 2022 is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
Wilfred v Karanja (Chairman) & 3 others (Tribunal Case 242 of 2013) [2023] KECPT 415 (KLR) (27 April 2023) (Ruling)
Neutral citation: [2023] KECPT 415 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 242 of 2013
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
April 27, 2023
Between
Peter Muasya Wilfred
Claimant
and
Frederick Kamande Karanja (Chairman)
1st Respondent
Francis Kimani (Secretary)
2nd Respondent
Peter Muthike (Treasurer)
3rd Respondent
Muka Mukuu Farmers Co-operative Society Limited
4th Respondent
Ruling
1. This Ruling dispenses with the 4th Respondent’s Notice of Motion dated May 31, 2022, and filed on June 7, 2022.
2. By its Notice of Motion, the 4th Respondent seeks the following orders:a.That this application be certified urgent and heard ex-parte in the first instance.b.That the Honourable Tribunal be pleased to review and set aside its directions issued on the 18th of May, 2022. c.That the Honourable Tribunal be pleased to allow the 4th Respondent/Applicant substitute their witness one George Musembi Mutiso who was the former chairperson of the 4th Respondent/Applicant with one Peter Ngui Mulili who the current Vice Chairperson.d.That the Honourable Tribunal be pleased to allow the 4th Respondent/applicant defend this case by calling its witness and adducing evidence.e.That the costs of this application be in the cause.
3. The Motion is supported by an Affidavit sworn by Samwel Ayieko, the advocate for the 4th Respondent.
4. Grounds on the face of the application are that the original witness who was slated to testify in support of the 4th Respondent’s case is unwilling, hesitant and/or unavailable to testify since he ceased being the Chairman of the 4th Respondent.
5. In their submissions, the Applicants submit that the matter came for hearing on 18th May 2022. When the time came for the 4th Respondent to present their case, they sought to substitute their former Chairperson George Musembi Mutiso with Peter Ngui Mulili, their current Vice Chairperson, who was present in court. The Applicants submit that closing this case without them calling its witnesses is a breach of Applicant’s Constitutional Right to fair hearing.
6. The Claimant filed a Replying Affidavit on August 29, 2022 dated August 28, 2022 in which he opposed the Applicant’s application herein. It is the Claimant’s submission that the Applicant had all the time to substitute the Witness Statement but he did not. According to the Respondent, Peter Ngui Mulili has been with the Sacco since 2013.
7. The Tribunal has considered the Applicant’s submissions together with the Claimant’s Replying Affidavit to this application. The Tribunal agrees that the right to a fair hearing. And so, what then are the norms or components of a fair hearing? The Supreme Court of India, in Indru Ramchand Bharvani & others v Union of India & others, 1988 SCR Supl (1) 544, 555 found that a fair hearing has two justiciable elements:(i)An opportunity of hearing must be given; and(ii)That opportunity must be reasonable (Cited by the Supreme Court of Kenya in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others[2021] eKLR).In answering the above questions, the Tribunal notes that this case is a very old case that was filed in 2013. It is not disputed that the witness the Applicant seeks to bring on board has been in the employment of the Applicant for a long time and has always attended court for the 4th Respondent’s matters. However, the 4th Respondent waited until his matter was called up for hearing that he sought to orally substitute the witness.
8. The Tribunal, therefore, finds that the 4th Respondent had a reasonable opportunity to apply for the substitution of his witness and filing of the Amended Witness Statement all along but did not take it.
9. In the upshot, the Applicant’s application dated May 31, 2022, and filed on June 7, 2022 is hereby dismissed with costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023TRIBUNAL CLERK JEMIMAH/JONAH