Githaka v Capital Sacco Limited & another [2024] KECPT 1165 (KLR)

Githaka v Capital Sacco Limited & another (Tribunal Case 502 of 2020) [2024] KECPT 1165 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1165 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 502 of 2020

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

July 25, 2024

Between

Naomi Kathure Githaka

Claimant

and

Capital Sacco Limited

1st Respondent

I.G Ringa t/a Viewline Auctioneers

2nd 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

1. The Claimant on 25th August, 2023 filed an Application dated 14th August, 2023 under Article 159 of the Constitution, Section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules seeking among others orders that:i.Spent.ii.There be a stay of execution of the order/ruling issued on 15th June, 2023 by Hon. Mjeni Mwatsama pending the hearing and determination of the Application.iii.The Honorable Tribunal to review and set aside the orders directing that the Claimant do liquidate the due debt by monthly installment of Kshs. 80,000/= issued on 13th June, 2023. iv.The Claimant be allowed to pay the debt amount by monthly installment of Kshs. 30,000/= with effect from 31st August, 2023.

2. The Application was based on the grounds that:a.The monthly installment amount of Kshs. 80,000/= ordered to be paid by the Claimant to liquidate the loan balances is on a higher side given the financial status of the Claimant.b.The Claimant’s current financial status is worse off and therefore the order requiring her to pay monthly installments of Kshs. 80,000/= to liquidate the loan ought to be reviewed/ varied and set aside.c.The Claimant can only afford a sum in the region of Kshs. 30,000/= per month and with a lot of difficulties.d.If stay of execution is not issued, execution will proceed and the Claimant will suffer substantial loss.e.It is in the interest of justice and all fairness that the Application be allowed.

3. It was the Claimant’s position from the Supporting Affidavit that the prayers she has made are in good faith and based on her financial standing and her current financial status is not adequate to give her the ability to raise and pay the amount of Kshs. 80,000/= that had been ordered.

4. On 23rd November, 2023, the 1st Respondent through their Branch Manager filed a Replying Affidavit which raised the following issues:i.That the Claimant’s loan account has been in default since 2018 and the 60-month loan term lapsed in October, 2021. ii.That the Claimant has not shown cause why she should be granted the orders she is seeking.iii.That the issue of paying in installments is functus officio and had already been adjudicated on and as such rendering the Application res-judicata.iv.That the Claimant has failed to honor all orders of the Tribunal since filing the initial Application dated 7th December, 2020. v.That despite the Claimant claiming that her financial status has worsened, she has failed to present her books of account of financial statements to show her financial position.vi.That the Claimant has not produced or shown discovery of new and important matter or evidence which was not within her knowledge or could have previously been produced before making of the Tribunal’s orders as issued on 15th June, 2023 or any other sufficient reason for grant of review orders as prayed.

5. Now that Submissions have been filed to dispense with this matter, the only question remaining for determination is as to whether the Claimant has met the threshold for review orders.

Has the Claimant met the threshold for review orders. 6. This Tribunal denotes the power to review its own judgements and rulings from Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.Section 80 of the Civil Procedure Act states that: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 judgement to the court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.Order 45 Rule 1 of the Civil Procedure Rules on the other hand provides that:(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 of 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 judgement to the court which passed the decree or made the order without unreasonable delay”.

7. In this particular case, the Claimant was not demonstrated how her Application for review conforms to the specific parameters enumerated in Order 45 Rule 1. Which are: Discovery of new and important matter or evidence which after the exercise of due diligence was not within her knowledge or could not be produced by her at the time when the decree was passed.

Some mistake or error apparent on the face of the record.

8. A party’s financial situation is not sufficient to warrant a review, especially if no specific evidence has been tabled to even show goodwill in liquidating the decree amount or filed account to convince this Tribunal to review its orders.

Final orders.i.The Notice of Motion Application dated 14th August, 2023 and filed on 25th August, 2023 fails.ii.The Claimant bears the cost of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. Hon. B. Kimemia Chairperson Signed 25. 7.2024Hon. J. Mwatsama Deputy Chairperson Signed 25. 7.2024Hon. Beatrice Sawe Member Signed 25. 7.2024Hon. Fridah Lotuiya Member Signed 25. 7.2024Hon. Philip Gichuki Member Signed 25. 7.2024Hon. Michael Chesikaw Member Signed 25. 7.2024Hon. Paul Aol Member Signed 25. 7.2024Tribunal Clerk JemimahMs. Chelangat for Claimant/ApplicantNo appearance for RespondentHon. B. Kimemia Chairperson Signed 25. 7.2024