Daima Sacco Society Ltd v Mwembu [2023] KECPT 825 (KLR)

Daima Sacco Society Ltd v Mwembu (Tribunal Case 384 of 2012) [2023] KECPT 825 (KLR) (24 August 2023) (Ruling)

Neutral citation: [2023] KECPT 825 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 384 of 2012

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

August 24, 2023

Between

Daima Sacco Society Ltd

Claimant

and

Alexander Mugo Mwembu

Respondent

Ruling

1. The matter for Determination is a Notice of Motion brought under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order9 Rule 9, Order 21 Rule 12, Order 22 Rule 34, and Order 51 Rule 1 of the Civil Procedure Rulesas amended in 2020 (CAP 21 of the Laws of Kenya) which was filed on March 21, 2022 dated March 18, 2022 that seeks for the following orders:a.Spentb.That the Honorable Tribunal be pleased to allow the firm of Kinyanjui Kirimi & Co. Advocates to come on record for the Respondent in place of Gachie Mwanza &Co. Advocates.c.That the Honorable Tribunal be pleased to grant stay execution for the decree of this Tribunal issued on March 25, 2015 pending the hearing and determination of this matter inter parties.d.That pending the hearing and determination of this matter inter parties, this Honorable Tribunal be pleased to allow the Applicant to continue settling the balance of the decretal sum by way of monthly installments of Ksh 50,000/=e.That the Honorable Tribunal be pleased to grant stay execution of the decree of this Tribunal issued on March 25, 2015. f.That the Honorable Tribunal be pleased to allow the Applicant to continue settling the balance of the decretal sum by way of monthly installments of Ksh 50,000/=g.That the cost of this Application be provided for,The same is based on the grounds on the face of the Application and supported by the Affidavit of Alexander Mugo Mwembu filed on March 21, 2022 dated March 18, 2022.

2. The Application has been ordered to be dispensed by way of written submissions on 13 April 2023. The gist of the Application is that the Respondent seeks a stay of execution of the order absolute issued on March 25, 2015 pending the hearing and determination of the instant Application and/or review, vary and set aside the said orders and to allow the Claimant to put in a request to the Respondent’s Application dated March 18, 2022.

3. The Respondent averred that the delay in filing this Application is not inordinate as claimed and neither is it an afterthought majorly because the Appellant has no reason for the delay. Additionally, he submits that as soon as the newly appointed Advocate came to record the Application of Notice of Motion dated March 18, 2022 was made with at most speed, and as so, the Applicant came with instructions having received a notice to show cause why he shouldn’t be committed to civil jail. Thus, he avers that there being a reasonable explanation for the delay should be granted to orders sought herein.

4. The Applicant aver that he has been making regular payments of Ksh 50,000/= and is committed until full payment. Further, he states that besides being a member of the Claimant’s Sacco, the Applicant has not been receiving any dividend and interest payment as the same has been used for the payment of the amount owed.

5. Issues For Determinationa.Whether the stay of execution should be granted?b.Who shall bear the cost of the Application?

Analysis and Determination 6. The legal basis for grant of stay is Order 42 Rule 6 of the Civil Procedure Rules which provides, “no order of stay of executions shall be made under sub-rule (1) unless the court has been satisfied that the Application has been made without unreasonable delay.”

7. Additionally, order 22 Rule 22 of the Civil Procedure Rules empowers the Tribunal to issue stay of execution orders upon sufficient cause.

8. Having a reasonable cause on failure to oblige to the orders of furnishing the decretal sum to make payment of Ksh 50,000/= monthly that he is a sole breadwinner for the family and thus stands to suffer sufficient cause if not granted a stay of execution, will be based on Order 42 Rule 6(2) that demonstrate:a.A substantial loss may result if the stay is not granted.b.That the Application has been brought without unreasonable delay.Further, in the case of Butt v Rent Restriction Tribunal(1982) KLR 417, it held in the Court of Appeal that:“1. The power of the court to grant and refuse an Applicant for a stay of execution is discretionary. To stay the execution, however, must be exercised in such a way as not to prevent an Appeal.2. The General Principle in granting or refusing a stay, is there is no other overwhelming hindrance, a stay may be granted so that an Appeal may not be rendered nugatory should the Appeal court reverse the judge’s discretion.3. A judge should not refuse a stay, if there are good grounds for granting it merely because in opinion, a better remedy may become available to the Applicant at the end of the proceedings4. The Court in exercising its discretion on whether to grant or refuse a stay Application will consider the special circumstance in this case were that there were a large amount of rent in dispute and the Appellant had an undoubted right of appeal”

Conclusion 9. 1.Application dated March 18, 2023 is allowed.2. That the Honorable Tribunal is pleased to allow the firm of Kinyanjui Kirimi & Co. Advocates to come on record for the Respondent in place of Gachie Mwanza &Co. Advocates with no order as to costs..3. The Respondent is to pay Ksh 250,000/= on or before 30. 9.2023 in default Warrants of Arrest to issue.4. Respondent is to make payment of Ksh 50,000/= thereafter pending the parties agreeing to installment payment5. All other prayers fail.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 24. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 24. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 24. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 24. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 24. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 24. 8.2023HON. PAUL AOL MEMBER SIGNED 24. 8.2023Ms. Ndungu advocate holding brief for Mr. Arithi advocate for the Claimant.Ms. Swaka holding brief for Mr. Kirimi for the Applicant.Ruling as read out.