Borop Multipurpose Sacco Society Limited v Serser & 3 others [2025] KECPT 219 (KLR)

Borop Multipurpose Sacco Society Limited v Serser & 3 others (Tribunal Case 6 of 2010) [2025] KECPT 219 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 219 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 6 of 2010

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

March 27, 2025

Between

Borop Multipurpose Sacco Society Limited

Claimant

and

Sonaiya Serser & 3 others & 3 others & 3 others & 3 others & 3 others & 3 others

Respondent

Ruling

1. The Notice of Motion Application dated 8th April, 2024 is brought under Section 1A, 1B, 3A, 63(e), and 24 (Rules 2, 3 & 4), 45 Rules 1, 2, & 3, 51 (Rule 1) of the Civil Procedure Rules seeking orders:1. That the Honourable Tribunal be pleased to set aside and/or vary its ruling of the 30th November and any other consequential orders.2. That the costs of this Application be provided for.

2. The Application was supported by the annexed affidavit of Moses K. Siongok on the grounds:i.That the Cooperative Tribunal issued a Ruling Dated 30th November 2023 in favour of the Respondent and made orders;a.Varying the orders issued by the Cooperative Tribunal on the 30th March 2015 to the extent that the Applicants surrenders to the Respondent the title to LR No 9045/10 or the title to subdivision from LR No 9045/10b.Or in the alternative to order (a), it ordered for the cancellation of the titles originating from the subdivisions of LR No 9045/10 and ordered the registrar of titles to restore the Respondent’s mother title, for a fresh subdivision of the society land to their members.ii.That the effect of the decision of the 30th November 2023 is cancellation of titles originating from LR 9045/10 and restoration LR No 9045/7. iii.That land parcel LR No 9045/7 is the mother title which gave birth to LR No 9045/8, LR No 9045/9, and LR No 9045/10. iv.That the restoration of land parcel LR No 9045/7 would automatically cancel the registration of parcels No 8, 9, and 10 and will adversely affect persons not party to the proceedings herein.v.That neither LR No 9045/7 nor Mau Summit/Sachangwan Block 10 were pleaded in the parent pleadings and as such out not to have been part of the ruling of the Tribunal.vi.That the 1st Respondent died on the 27th March 2023 and as such the proceedings that took place after his demise were a nullity as the suit against him neither abated nor was he substituted as a party.vii.That the Tribunal appear to have gotten the facts wrongviii.That the Tribunal failed to issue a Notice of Ruling to the Respondents/Applicants despite having Counsel on Record.

3. This Tribunal on 9th May, 2024 gave directions for the Applicants to serve the Application. The Respondents filed Grounds of Opposition to the Application dated 16th July, 2024 stating among others:I.That the applicants have moved three different courts at the same time and on the same date and that goes to the root of the bonafides of the instant application, making it clearly an abuse of the process of the court and the tragedy is that the lack of candidness and/or exercise of candour was not exercised by making a frank and full disclosure of the above.II.That for the record, the filings before various courts by the Applicants are all dated 8th April, 2024 where:a.In the Co-operative Tribunal Case No 6 of 2010 they are seeking the Honorable Tribunal to set aside and or vary its ruling of 30th Nov., 2023 which is the instant applicationb.In the High Court at Nairobi Misc Application No E 313 of 2024 they are seeking leave to lodge appeal (against the Honorable Tribunal ruling of 30th Nov., 2023) out of time, which application is still pending hearingc.In the High Court at Nakuru Judicial Review Application No E.010 of 2024 the Applicants have filed an ex-parte chamber summonsIII.That the Applicants are clearly engaged in acts of forum shopping and abusing the court processes and thus disentitled to the orders soughtIV.That it is trite law that a party who has filed an appeal, as is the instant case, such a party is barred from making an application for reviewV.That fundamentally, a wrong incorrect exposition of the law, misconstruing of a statute or other provision of the law are not grounds for review ,although may be grounds for appeal

4. That the Respondents also filed a Replying Affidavit dated 2nd August, 2024 through its Chairman Philip Kirui stating among others:a.That the Applicants are clearly engaged in acts of forum shopping and abuse of the court process by moving to three different courts at the same timeb.That the application before court does not meet the grounds for review as provided in the law to warrant the reviewc.That an Applicant cannot come for review and seek to appeal at the same time as such is not available in lawd.That the Applicants allegation of the Honorable Tribunal's failure to issue them a notice of the ruling is factually incorrect and lacks merit given that the Respondent advocate served them the ruling notice dated the 15th September 2023e.That the Application has been brought malafide and the Applicant should not be allowed to forum shop and invoke parallel filings without disclosing to the court of the filing of the other applications before the High Court at Nakuru and High Court at Nairobif.That the issues raised in seeking review, invites an appeal and therefore the instant application ought to be strike out inlamine as the Tribunal no longer has jurisdiction to entertain the issues raisedg.That it is abundantly clear that the applicants remedy is in the appeal to the High Court where they will raise all the issues they have raised before the Honorable Tribunal

5. The Respondents filed their written submissions dated 4th December, 2024 stating among others:i.That it is settled law that a litigant has no rights to pursue peripasu two processes which will have the same effect in two courts at the same time with a view of obtaining victory in one of the processes or in bothii.That litigation is not a game of chess where players outsmart themselves by dexterity of purposes and traps, on the contrary litigation is a contest by judicial process where the parties place on the table of justice their different positions clearly, plainly and without tricksiii.That it is a well trodden path in law that one cannot seek both the review and an appeal in respect of the same ruling, or order or judgement, but that is precisely what the Applicants are doing on the same day in three different courts. As such the instant application is totally defective and its fate is that of striking out inlamine.iv.That the grounds for review have not been met as the Applicants have no sufficient cause, nor have they presented discovery of new and important matter or evidence which after the exercise of due diligence was not within their knowledge. Neither have they shown that there is mistake or error apparent on the face of the record.v.That in the instant application, the Applicants have placed grounds that require elaborate arguments, grounds that are subject to appeal and questions that cannot be raised in a review after the original review of the matter by the Honourable Tribunalvi.That the Applicants are taking the Honorable Tribunal on an academic journey which has already been undergone, and such grounds are only ripe for appeal and not for reviewvii.That the applicants allege that they were not notified of date of ruling which is factually incorrect and cannot be a sufficient ground for review in an era where there is a judicial technological system that updates the progress of a matter and such that it is available for the general public. It is also important to note that there is evidence on record that the Applicants had knowledge of the same.viii.That the Application has been made in bad faith to undermine the integrity of judicial proceedings as the failure to disclose the existence of an Appeal is material because it directly impacts the court's jurisdiction to entertain the review.ix.That Order 45 of the Civil Procedure Rules make it clear that a review is only open to a party who is aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred.

6. The Applicants on their end filed their written submissions dated 13th December, 2024 stating among others:i.That the Co-operative Tribunal does not have jurisdiction to order the surrender and subsequent cancellation of titles to land, and under the Constitution especially Article 162 (2), that power and/or jurisdiction has been given to the Environment and Lands Court which is tasked with handling disputes relating to the environment and the use of and occupation of land, and title to landii.That the honorable Tribunal did not possess the requisite jurisdiction to issue the writ for cancellation of titles which is an exclusive preserve of the Environment and Lands Courtiii.That the Tribunal made a decision without proper jurisdiction and the same ought to be set aside to prevent gross miscarriage of justice and pertinent threat to the rights of the applicantsiv.That the Honorable Tribunal erred both in law and in fact in including all that parcel of land known as LR 9045/7 in its ruling dated 30th November 2023 and which has the net effect of disenfranchising the proprietors and any other person who wield an interest in the property.v.That the land parcel known as LR 9045/7 was not the subject of the parent pleadings by either party to the proceedings in the Tribunal since the same was not captured in the Respondent’s Notice of Motion Application dated 30th May 2022vi.That Application for review is pegged on an error apparent on the face of the record, by dint of inclusion of a material issue that was neither pleaded by the parties, nor whose affected parties were given a chance to take part in the proceedings, the Application for review has met the threshold required.vii.That the emergence of all that person known as LR 9045/7 and Mau Summit/Sachangwan Block 10 In the tribunal's ruling has taken the applicants aback and the same is argued as an error apparent in the face of the record since it was not included in the parent pleadings.

7. We have considered the Application, the Grounds of Opposition to the Application, the Replying Affidavit and the Written Submissions filed and the only question remaining for determination, is as to whether the grounds for review have been met.

Has the grounds for review been met? 8. Order 45 Rule 1 of the Civil Procedure Rules provides the grounds for review and it states: -Application for review of decree or order.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 a review of judgment to the court which passed the decree or made the order without unreasonable delay.2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the Appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

9. The Rules limit the grounds for review to be: -a.discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.on account of some mistake or error apparent on the face of the record,c.for any other sufficient reason desires to obtain a review of the decree or order may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay

10. In as much as it is important to go back and look at what has been submitted in support of the Application in line with the grounds for review and the limits of those grounds, this Tribunal is alive to the fact that before even attempting to look at any of that, it has to first satisfy itself that the condition set in Order 45 Rule 1(a) that “an appeal must have not have been preferred” is met.

11. In this particular case, that doesn't seem to be the case as the Applicants have already moved to the High Court on two fronts :1. to quash this Tribunal's ruling of 30th November 2023 through Judicial Review Application No E.010 of 2024 filed in Nakuru High Court, and2. to appeal this tribunal's ruling of 30th November 2023 through Misc Application No E 313 of 2024 filed in Nairobi High Court

12. That being the case, it is our considered position that what we are being invited to look at and review, is already outside our jurisdiction and as such we humbly decline the invitation.

Final Orders: 13. The Notice of Motion Application dated 8th April, 2024 is dismissed with costs to the Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMs. Mati advocate holding brief for Arusei advocate for the RespondentKiage advocate holding brief for Ogolla advocate for the Applicant.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025