Borop Multipurpose Coop Society Ltd v Serser & 3 others [2023] KECPT 1029 (KLR)

Borop Multipurpose Coop Society Ltd v Serser & 3 others (Cause 06 of 2010) [2023] KECPT 1029 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1029 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Cause 06 of 2010

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

November 30, 2023

Between

Borop Multipurpose Coop Society Ltd

Claimant

and

Sonaiya Serser & 3 others

Respondent

Ruling

The Facts of the Case 1. The history and the proceedings of this case span very many years,In 2010, Borop Multipurpose Cooperative Limited approached this Tribunal seeking orders that the Respondent in this case or their agents be restrained from dealing with all documents and or equipment belonging to Borop Multi-purpose Cooperative Society and also that the Respondents be compelled to return all documents and properties that belong to the Society.Part of the particulars of the documents that were to be handed over included land title deed, common seal and a deed plan.The Tribunal noted, made a finding or ordered the following on the judgment it made on 30th March 2015. They includei)That in the event that the Respondents had carried out any acts as officials of the Claimant society when they were not ,then such act and actions were illegal and of no legal effects.ii)The Tribunal took judicial notice of the fact that The Registrar of Titles is the custodian of all land registration records and the evidence of title to land is that which appears on the land register and that which can be obtained at the land’s office and that in the event that LR No 9045/10 was registered, it will be clear from the registrar including the detail of the ownership of the property.iii)That the certificate of registration and common seal that the Management Committee that left after elections that were held on 8/6/2002 ought to have been handed over to the incoming Committee.iv)The Tribunal awarded the Claimant the cost of the suit given that they had succeeded in their claim.On 30th May ,2022 the Claimant under Order 45 Rule 1(a) and (b),Rule2,Rule 3(2) and Rule 5 ,Order 51 Rule1 of the Civil Procedure Rules, Section 1A,1B &3A of the Civil Procedure Act made on Application seeking the following Orders :i)That the Tribunal be pleased to review and or set aside or vary and or vacate the Orders it issued on 30th March 2015 to the extent that the tribunal directed that the Claimant /applicant follows up with lands office for the title to LR No 9045/10 .ii)That the Tribunal be pleased upon review to order that the Respondents to surrender to the Claimant /Applicants the title to the L.RNO.9045/10 or the titles to the sub-divisions from the L.R.NO. 9045/10 that is the title to the Mau Summit/sachangwan Block 10/1-200 hived out from L.R.NO 9045/10. iii)That the Tribunal be pleased to order that the above titles to Mau Summit /sachangwan Block 10/1-200 be and is hereby cancelled for having been acquired illegally and irregularly from the Claimant L.R.NO9045/10 and accordingly the cancellation of the above titles restores the Claimant title to LR9045/10 to the status quo ante the illegality of hiving out the Claimant land and titling of the same.The Application was supported by the Affidavit and Supplementary Affidavit of Philip Kirui.

2. The Application for review is based on new evidence which was deponed on oath in the E.L.C court in Nakuru Petition No 22 of 2019. In the said case, Moses K. Siongok at paragraph 19 of his affidavit sworn on 22nd November, 2021 gives new information that was not before this Tribunal when he mention a piece of land registered as Mau Summit /sachangwan Block 10/1-200 which had been hived off a parcel of land known as LR No 9045/10. Initially, the Respondent had maintained before this Tribunal that LR No.9045/10 is a borehole and did not measure 123. 6 acres .That LR No 9045/10 was a borehole and was a public utility and they as officials did not have the title deed for it.

3. The Application for review is based on the fact that as at 30th March, 2015, when this Tribunal pronounced itself on the case before it, some material facts or evidence could not be produced by the Claimant despite exercise of due diligence. That the Claimants could not access the Title LR.No 9045/10 then on the lands office and even efforts to gazette a lost title were all in vain.That now the Respondents, in particular Moses K Siongok ,through an affidavit he has sworn in another matter before the Environment and land court in Petition No. 22 OF 2019 has brought to light the fact that a parcel of land known as Mau Summit /sachangwan Block 10/1-200 was hived off LR No 9045/10.

4. This Application for review is aimed at stopping the Respondents from having it both ways .That before this Tribunal, LR9045/10 is a borehole of 0. 8 acres which is a public utility and they don’t have the title for it and before the Environment and Land Court, it is a block measuring 123 acres that has been subdivided and many titles issued from the block.The Application for review is to stop the abuse of Court Process by allowing a party to suppress material facts because it does not suit his case or to advance falsehoods under oath to mislead the court in fair determination of a dispute.

Issues For DeterminationI)Whether the Tribunal has jurisdiction or power to review, vacate, set aside or vary its own judgment

II)Cost of the suit. Issue One - Whether the Tribunal has jurisdiction or power to review, vacate, set aside or vary its own judgment 5. Power of a court to review its own judgment is exercised within the framework of section 80 of the Civil Procedure Act and Orders 45 Rule 1 of the Civil Procedure Rules.Section 80 of the Civil Procedure Act provides that:“80. Any person who considers himself aggrieved-

a)By a decree or order from which an appeal is allowed by this Act but from which no appeal has been preferred: orb)By a decree or order from which no appeal is allowed by this Act may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such orders thereon as it thinks fit”.Order 45 Rule 1 of the Civil Procedure Rules provide that:“Rule 1(1) 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 and important matter or 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 review of judgment to the court which passed the decree or made the order without unreasonable delay”.Section 80 gives the power of the review while Order 45 Rule 1 set out the Rules The two sections give the scope of the review and jurisdiction and also limit the scope and jurisdiction to the following;a)Discovery of new and important matter or evidence which affects the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time which the decree was passed or the order made.b)On account of some mistake or error apparent on the face 32 of the record.c)For any other sufficient reason and whatever the ground this is a requirement that the application has to be made without unreasonable delay.In Mwiloko Housing Co.Ltd vs. Equity Building Society [2007] 2KLR 171, the Court of Appeal said that:‘’it is trite law ,and we reiterate ,that a review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court”The error or omission must be self -evident and should not require an elaborate argument to be established. It will not be a sufficient ground of review that another judge could have taken a different view of this matter nor can it be a ground of review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review.

6. Review is a creation of the law and not an inherent power it must be conferred by law or by necessary implication. From the facts of this case and the evidence presented, we are satisfied that there is discovery of new and important matter of evidence relating to the parcel of land known as LR No 9045/10 which despite exercise of due diligence was not within the knowledge of the Claimant and could not have been produced by them at the time we made our judgment in 2015.

7. We have also taken note of the fact that the 2nd Respondent Mr. Moses K. Siongok acted in bad faith by suppressing or outrightly lying to this Tribunal under oath in relation to the details of LR No 9045/10. It is an offence against the administration of justice in Kenya for a person to knowingly give false testimony touching on a matter which is material to a question pending in court.Given that our jurisdiction is civil and not criminal, we may not be able to sanction or issue the appropriate penal penalty for such a transgression, our falling grace is in equity .In equity, courts are required to consider whether parties before it have approached proceeding with clean hands. Doctrines of equity require the court to deny a party who has come into equity with unclean hands any equitable reliefs they are seeking .In this particular case, with the new evidence that has come to light we find in favor of the applicant and as such allow the Notice of Motion Application dated 30th May 2022 with the following orders:i)Varying of the orders issued by the Cooperative Tribunal at Nairobi on the 30th March, 2015 to the extent that the Respondent surrenders to the Claimants the title to L.R.NO. 9045/10 or the title to subdivision from L.R.NO 9045/10ii)Or in the alternative to the order (I), we hereby cancel the titles originating from the subdivisions of LR No 9045/10 and order the registrar of titles to restore the Claimant’s original title to LR No 9045/7 which is the mother title, for a fresh subdivision of the society land to their members.iii)Award the cost of this suit to Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 31. 11. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE - MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 30. 11. 2023HON. PAUL AOL - MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 31. 11. 2023Tribunal Clerk JonahNotice of Motion Application dated 30. 5.2022 is allowed with costs to the Applicant.Kiget advocate holding for Mr.Arusei for the ClaimantKiget advocate – We pray for the certified copy of the Ruling.Tribunal: Party to follow up with Administration of the Ruling.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023