Kimaru v Commissioner for the Co-operative Development & another [2024] KECPT 1383 (KLR)

Kimaru v Commissioner for the Co-operative Development & another (Tribunal Case 33 of 2019) [2024] KECPT 1383 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1383 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 33 of 2019

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

August 29, 2024

Between

Michael Kinyua Kimaru

Claimant

and

The Commissioner for the Co-operative Development

1st Respondent

Kukena Sacco Society Limited

2nd Respondent

Ruling

Notice of Motion 1. The Notice of motion application dated 8th November 2022 is brought under Sections 1A, 1B, 3A, 3B, 63 (e), 80, order 45, order 51 of the Civil Procedure Rules and all other enabling provisions of the law seeking among others orders that;i.Spentii.The court reviews, varies and rescinds the judgment and/or consequential order issued on 26/5/2022 on costs and the same be paid by the 1st Respondentiii.The costs of the application be provided for.

2. The Application was supported by the affidavit of David Muriithi Kababi on the grounds that:a.The 2nd Respondent is now required to bear costs arising from a process conducted by the 1st Respondentb.It is only fair that since the inquiry report was prepared by the office of the 1st Respondent, the Sacco should not be apportioned any liability as a cost.c.The Tribunal having faulted the inquiry process which the Sacco had no role in the manner it was conducted it would only be fair that the 1st Respondent be apportioned the sole responsibility of bearing the costs.This Tribunal on 31st July, 2023 gave directions for the parties to be served with further directions given on 6th February 2024 for the Application to be canvassed by written submissions.

3. The Claimant filed his written submissions indicating among other that there was inordinate delay in filing the application and that the 2nd Respondent has not demonstrated as to whether the order for costs which is discretionary, was made unjudicially, and as such the application does not meet the threshold for review and should be dismissed.The 2nd Respondent on their hand argued that this Tribunal did not find them culpable of any wrong doing and their role in the inquiry leading to the surcharge was to avail information and documents and as such they did not participate in any decision making in the surcharge that has successfully been appealed against.It is also their argument that they are not asking the Tribunal to reverse its findings but rather to offer clarity on who between the Respondents should bear the costs as the error is on the face of the record, and is self-evident.We have considered the written submissions and the application, and the only question remaining for determination is as to whether there is need for this Tribunal to review it findings and/or correct the error apparent.Should the Tribunal review its findings and/or correct the error apparent? Courts jurisdiction to review their own judgments and/or findings and orders are exercised within the framework of Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules. Section 80 gives the power of review while order 45 Rule 1 sets out the rules.

4. The two legal instruments above, restrict the grounds for review by essentially laying down the jurisdiction and scope of review to:i.Discovery of new and important matter of evidence which after 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.ii.On account of some mistake or error apparent on the face of the record, oriii.For any other sufficient reason as long as the application is made without unreasonable delayIt is important to note that a review may be granted whenever the court considers if necessary to correct an apparent error or omission on the part of the court when such an error or omission is self-evident and does not require an elaborate argument to establish.In this particular case, it is self-evident that there is an apparent error on record as this Tribunal was not specific as to which Respondent should bear the cost. This error is prima facie visible and does not require any elaborate argument to establish and as such this Tribunal has made the decision to review its orders as to costs.

5. In the interest of justice, this Tribunal reviews its discretion as to costs and orders that all parties to bear their own costs. We are persuaded that this is the most equitable thing to do, as the Claimant or Appellant did also not succeed in all the prayers he brought before this Tribunal. UpshotApplication Notice of Motion dated 8/11/2022 is found to be with merit.The judgment of the Tribunal dated 26/5/2022 is reviewed on issue of costs– all parties will bear their own costs.File closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia - Chairperson Signed 29. 8.2024Hon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe - Member Signed 29. 8.2024Hon. Fridah Lotuiya - Member Signed 29. 8.2024Hon. Philip Gichuki - Member Signed 29. 8.2024Hon. Michael Chesikaw - Member Signed 29. 8.2024Hon. Paul Aol - Member Signed 29. 8.2024Tribunal Clerk JonahKimata advocate holding brief for Mr. Ombachi for the Appellants.Mathenge for the Interested Party.Hon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024