Jabuto & 4 others v Mwiti [2024] KECPT 899 (KLR)

Jabuto & 4 others v Mwiti (Tribunal Case 139 of 2021) [2024] KECPT 899 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 899 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 139 of 2021

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

May 30, 2024

Between

Jackline Akoth Jabuto & 4 others

Claimant

and

David Mwiti

Respondent

Ruling

1. This Tribunal is called upon to make a determination out of a Notice of Motion Application dated 4th May 2023 which was filed by the Application seeking for the following orders:a.That this Application be certified as urgent and be heard exparte in the first instance(spent).b.That this Honourable court be pleased to grant a temporary order of injunction against the Respondents particularly directed to the 3rd and 5th defendant/Respondent prohibiting the said 3rd and 5th Defendant/Respondent from transferring or moving in any matter prejudicial to the proprietary interest of the Applicant over the motor vehicle registration Number KAY 757N pending the hearing and determination of the suit.c.That pending the hearing interparties of the Application this Honourable court be pleased to grant an interim exparte order compelling the 3rd and 5th Respondents to release the motor vehicle Registration number KAY 757N immediately and unconditionally.d.That this Honourable court be pleased to make an order directing the OCS Kileleshwa police station to effect the terms of the orders of this honorable court.e.Costs of this Application be borne by the Defendants/Respondents.The Notice of Motion Application is anchored under Order 40 Rule 1 and 4 of the Civil Procedure Rules and Section 1A, 1B and 3A of the Civil Procedure Act.

2. In support of the Application, the Claimant/Applicant filed un-dated Supporting Affidavit on 4th May 2023 and attached photocopy of a car Sale Agreement which was signed on 12. 4.2007.

3. The background of this matter stems from a statement of claim dated 24th September, 2020 which was a claim of Kshs 1,607,401. 74/= against David Mutegi Mwiti who is the Judgment Holder/2nd Respondent in the instant Application.

4. On 24th September, 2021 the Tribunal delivered a judgment in favor of the Claimants who in the instant case is the Decree-Holder/1st Respondent.From the judgment a Decree was extracted on 1st April 2022 which together with certificate of costs scaled the amount payable to Kshs 1,950,508. 86/=.Thereafter Warrants of Attachment were issued for the execution of the Decree was issued to immediate Auctioneers.

5. Unknown to the Claimants, the motor vehicle registration number KAY 757N which was seized by the auctioneers is said to have been sold to one Mr. George Jomo Ngugi Ndegwa. Under Certificate of Urgency dated 28. 9.2022. Mr. George Jomo Ngugi Ndegwa moved the Tribunal and obtained orders dated 30. 9.2022 to stop the sale of the motor vehicle registration number KAY 757N by Public Auction. After processing the Notice of Motion Application which was filed under Certificate of Urgency dated 28. 9.2022, the Tribunal upheld the same position to stop the public auction vide a ruling dated 2nd March, 2023.

6. After several months of engagements with the Decree Holder/ 2nd Respondent, the 3rd Respondent and the 5th Respondent requesting for the release of the motor vehicle the 3rd Respondent advised the Claimant:“That he would not release the motor vehicle without payment of his costs and storage fees. They stated that the ruling did not indicate anything about the release of the suit motor vehicle to me”(paragraph 10 of the Claimant’s supporting affidavit un-dated but filed on 4. 5.2023. )

7. This prompted the Claimant/Applicant to file the instant Application.Upon consideration of the evidence on record and before we analyze the facts, we first of all need to make it clear whether the Tribunal has jurisdiction to determine a dispute between a non-member and members of a Cooperative Society and other non-members?.

8. This Tribunal is charged with the responsibility to determine disputes under Section 76 (1) of the CooperativeSocieties Act Cap 490 which arise:a.Among members, past members and persons claiming through members, past members and deceased orb.Between members, past members or deceased members and the society, its committee or any Officer of the society.c.Between the society and any other Cooperative Society.However, we have no record that the Claimant/Applicant is a member or a past member of the same Sacco with the Decree-Holders/1st Respondent; so how did he approach and be entertained by the Tribunal?.

9. From the file records and the judgment entered on 31. 5.2021, the answer to that question is that the Applicant was allowed to move the Tribunal as an objector Order 22 Rule 51(1) provide as follows:“Any person(emphasis ours) claiming to be entitled to or to have a legal or equitable interest in the whole of or part of any property attached in execution of a Decree may at any time prior to payment out of the proceedings of sale of such property give notice in writing to the court and to all the parties and to the decree -holder of his objection to the attachment of such property(emphasis ours).

10. Further, the Applicant/Claimant provided copies of dully signed and witnessed car sale agreement dated 12. 4.2007 copies of duly filed and signed transfer form of ownership of motor vehicle between David Mwiti Mutegi (the Seller) Decree-Holder/2nd Respondent dated 10th January 2008 and copies of certificate of insurance in the name of the Applicant.

11. In our opinion, these documents go along way of proof that the said motor vehicle registration Number KAY 757N was actually sold to the Applicant. According to the buyer, he stated that after completing the transfer form, the seller failed to avail the logbook to him to enable him to effect the transfer. Yes, we agree with the contention of the 1st and 3rd Respondents that Section 9 (1) of the Traffic Act (Cap 403) was not acted upon by the Applicant not because of his fault but because the seller failed to give him the log-book.The Applicant demonstrated this by attaching the original police abstract and DCI reports dated 28. 7.2021 after meeting with the Decree-Holder/2nd Respondent who advised him that he lost the log book. On the same day he went with him to Kileleshwa Police Station to report the loss and also went to the DCI offices at Nairobi Area Police headquarters for tape lifting.

12. Earlier in 2008, when the same motor vehicle registration Number KAY 757 N was attached by consumer Credit Limited, the applicant moved the Chief Magistrate’s Court [case number 784 of 2008] and obtained orders to restraint the Defendants from interfering with the Applicant’s quiet possession of the motor vehicle.

13. Certainly, the Applicant would not have fought all these interferences if he had not bought the motor vehicle under dispute.

14. Having established that the motor vehicle registration number KAY 757N we order that the 3rd and the 5th Respondents are hereby directed not to interfere transfer or move the stated motor vehicle.

15. On the prayer that the motor vehicle registration number KAY 757N be released to the Applicant, we have this to say “ despite the indolence of the applicant to have the motor vehicle transferred to his name by NTSA not out of his own fault but on the fault of the 2nd Respondent, this does not distinguish the Applicants’ proprietary rights of ownership of the motor vehicle.Further, acting on Rule 4 of the Cooperative Tribunal (Practice and Procedure) Rules 2009 which state that:The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure.”Our decision is that the motor vehicle registration number KAY 757N belong to the Applicant having bought and took possession from Mr. David Mutegi Mwiti who is the Judgment Debtor/2nd Respondent. Accordingly, we hereby order that the said motor vehicle be released to him immediately and unconditionally.

Conclusion 16. Satisfied that the Applicant has proved his case, we order as follows: Application dated 4. 5.2023 is allowed in the following terms:1. That an order is hereby issued for the 3rd and 5th Respondents are compelled to release the motor vehicle Registration number KAY 757N immediately and unconditionally to the Applicant.2. That in default to release the motor vehicle Registration Number KAY 757N promptly, the OCS Kileleshwa is directed to effect this order accordingly.3. That the judgment against Mr. David Mutegi Mwiti dated 24. 9.2021 remain untampered and therefore the decree holders are hereby ordered to search for other properties of the judgment debtor/2nd Respondent to attach.4. Each party to bear its own costs. It is so ordered.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE - MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI - MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 5.2024HON. PAUL AOL - MEMBER SIGNED 30. 5.2024TRIBUNAL CLERK JONAHMr. Maranga advocate holding brief for Mr. Lemayian for the 1st, and 3rd Respondent.Waweru advocate holding brief for Ms. Muthoga advocate for the Applicant.