Akubu v Balozi Housing Coop. Society Limited [2024] KECPT 1401 (KLR)

Akubu v Balozi Housing Coop. Society Limited (Tribunal Case 160 of 2020) [2024] KECPT 1401 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1401 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 160 of 2020

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

August 29, 2024

Between

Sylvia Kangendo Akubu

Claimant

and

Balozi Housing Coop. Society Limited

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

Notice Of Motion Application 1. The Notice of Motion Application dated 30th May, 2023 is brought under Section 83 of the Cooperative Societies Act seeking among others orders that:a.The Honourable Tribunal be pleased to find that the Chairperson of the Defendant, George Mimba, and all the officials of the Defendant have disobeyed and are in contempt of the Tribunal by blatantly disobeying the Honourable Tribunal orders of 16th December, 2022. b.The Honourable Tribunal be pleased to punish the chairperson of the Defendant, George Mimba, and all the officials of the Defendant for disobeying the Tribunal’s order of 16th December, 2022 pursuant to section 83 of the Cooperative Societies Act.

2. The Notice of Motion Application was supported by the Affidavit of the Plaintiff on the grounds that:a.This Tribunal on 16th December, 2022 issued a decree directing the defendant to forthwith and unconditionally process a title for the Plaintiff over the said property within 14 days of the issuance of the order.b.The Defendant and its officials have not processed the plaintiff’s title over plot No. 363 within 14 days of the issuance of the orders.c.The said officials are in flagrant contempt, as the decree has not been set aside, of the Tribunal orders and as such demeaning to the Tribunal and shows utmost lack of respect to the rule of law.d.The Defendant and its officials will continue disobeying the orders unless sanctioned by the Tribunal.e.Unless the orders sought are granted, the Plaintiff will continue to be prejudiced as she cannot enjoy unfettered possession and ownership of the suit property which rightfully and lawfully belongs to her.

3. On 16th February,2024 this Tribunal gave directions for the Application to be canvassed through written submissions.

4. The plaintiff filed her written submissions and stated that the decree was not set aside and to fail to comply with it is tantamount to contempt of court.

5. Having considered the evidence and submissions filed, there is only one question remaining for determination, is the Defendant and its officials in contempt of this Tribunal’s orders?

Is The Defendant And Its Officials In Contempt Of This Tribunal’s Orders? 6. Contempt of court is the very act of disobeying an order of court that is specific, in relation to who is specified to do or not do an act within which specified time. In Hadkinson Versus Hadkinson [1952] Romer LJ stated that:“It is the plain and unqualified obligation of every person against or in respect of whom an order is made by a court of competent jurisdiction to obey it and unless and until that order is discharged. The uncompromising nature of the obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

7. Court orders must be obeyed by the parties it is addressed to and it is irrelevant what a party perceives it to mean or imply. Procedurally, or be an order is served an the party who is supposed to act on it is notified, and they do not act as they have been ordered or within the time frame they have been ordered, they are in contempt.

8. If this Tribunal is to perform effectively the very function it was established to perform under the Cooperative Societies Act, its dignity and authority must be protected and respected at all costs, and that is why it is imperative that the order this tribunal gave on 16th February, 2022 be complied with.

9. In this particular case, there is no doubt that the Defendant was aware of this Tribunal’s order of 16th February, 2022 as his advocate received a letter from the Plaintiff advocate – letter dated 1st February, 2023. This in essence mean that they have willfully and intentionally disobeyed this Tribunal’s orders issued on 16th February, 2022 and in exercise of this Tribunal’s contempt jurisdiction, we find Balozi Housing Society Limited and its officials in contempt.

Final Ordersi.The Application Notice of Motion dated 30th May, 2023 is found to be with merit.ii.The chairman of the Defendant (George Mimba), Secretary- John ……. and Treasurer – Wilson Sarich of Respondent Sacco that is, Balozi Housing Cooperative Society Limited are found to be in contempt of the orders of the Tribunal that is, decree issued on 16th December, 2022. iii.The officials to appear before the Tribunal on 14. 11. 2024 to show cause why they should not be committed to civil jail.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia Chairperson Signed 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk JonahMs. Munene advocate for the ClaimantBalozi Housing Cooperative Society Limited- No appearanceHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024