Kirui & another v Urithi Housing Co-operative [2023] KECPT 802 (KLR)

Kirui & another v Urithi Housing Co-operative (Tribunal Case 154 of 2020) [2023] KECPT 802 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 802 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 154 of 2020

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

August 31, 2023

Between

John Weri Kirui

1st Claimant

Mary Wairimu Weru

2nd Claimant

and

Urithi Housing Co-operative

Respondent

Ruling

1. This Ruling is in regard to the Application made by the Applicants/Claimants dated 7th July 2022 and anchored on Order 51 rule 1 of the Civil Procedure Rules 2010

2. The Application is seeking for the following orders;i.That the Honorable Tribunal to unfreeze the bank accounts of CTC No. 55 of 2021 (Mary Kemunto Mayieka and 104 others vs Urithi Housing Cooperative society and Another);a.Equity Bank Account No. 0340271096554 – Thika Branchb.Equity Bank Account No. 034029987977 – Thika Branchc.Equity Bank Investment Account No. 034029987977 - Thika Branch belonging to the Respondent to enable the Claimants to attach and draw therefrom at least Kshs. 6,500,000/= plus the costs and interest as per the judgment and decree of this Tribunalii.That this Honorable Tribunal award costs plus interest on the above to the Claimants in satisfaction of the judgement delivered at Nairobi on 15th July 2021.

3. Without doubt, this matter has been alive and prosecuted by the Claimants since the time they filed their Statement of Claim dated 14th May 2020 and sought the refund of Kshs. 6,500,000/= which was paid to the Respondents for the purchase of plot no. 3 and plot no. 13.

4. Due to lack of filling Defence from the Respondents the Claimants invoked Order 10 Rule 4 which provide that;“Where the Plaint makes a liquidated demand only and the Defendant fails to appear on or before the day fixed in the summons or all the Defendants fail to appear, the court shall on request enter judgement against the Defendant or Defendants for any sum not exceeding the liquidated demand together with costs and interest…”Based on the provision, this Tribunal entered and delivered and ex-parte judgement on 6th July 2020 and ordered the Respondents to refund the Claimants the amount of Kshs. 6,500,000/=

5. Choked by the Interlocutory Judgment the Respondents filled objections, grounds of opposition and Written Submissions with a view to have the Interlocutory Judgment set aside.

6. The upshot of the exchanges of Statements, Affidavits, Written Submissions by the parties resulted to this Tribunal’s Ruling dated 15th July 2021 which ordered inter alia;i.That the judgement entered on 6/7/2020 and all consequential orders are set aside on condition;a.That the respondent herein do deposit the liquidated sum as per the default Summary Judgment an amount of Kshs. 6,500,000/= in an interest earning account in the joint names of the advocates of the parties within 15 days of this ruling

7. When the order remained unsatisfied the Claimant then brought the instant Application dated 7th July 2022.

8. To arrive at a determination in this matter one needs to consider the pleadings in the Tribunal’s file CTC No. 55 of 2021 whose Claimants were Mary Kemunto Mayieka and 104 others against Urithi Housing Co-operative Society and another.

9. Perusing through the names of the Claimants in the file No. CTC 55 of 2021 we note that the Claimants are not in the list and that is why they have moved the court on their own.

10. This finding is captured in Paragraph 5 pf the Supporting Affidavit of John Weru Karuri – the Claimant which states thus;”That it came to my attention that on 27th May 2021in CTC no 55 of 2021: Mary Kemunto and 104 others versus Urithi Co-operative Society Ltd and another this Honorable Tribunal issued orders of the freezing of the Respondent’s bank accounts no. 0340271096554, 0340299987977 and 0340262609301 held at Equity bank – Thika branch”

11. Seized by the truth that the Claimants were not included in the names of those contained in CTC 55 of 2021, the Tribunal issued an order on 20th January 2023 to the effect that the parties in file no. CTC 55 of 2021 be served with the Claimant’s Application.

12. In reply the parties in CTC 55 of 2021 through a Replying Affidavit filed on 10th May 2024 made several averments which pour cold water on the Claimant’s Application. Because the freezing orders in their case belong to them, the parties who signed the Replying Affidavit objected vehemently to the Application for unfreezing of the frozen accounts and also detailed at paragraph 11 thus;“we pray that this Honorable Court does not entertain this Application and that the freezing order should remain in place to ensure the interest of the 105 Claimants in CTC 55 of 2021 are protected”At paragraph 7,8,9 & 10 of the Replying Affidavit the signatories have contested with vigor the rationale of the Claimant’s filling their Application after one (1) year from the date of Judgement and when their case is proceeding to hearing.

13. Orders.i.We have perused the instant application, the proceedings, the orders post the interlocutory judgement and noted that the Claimants wish to ride on a horse which they did not feed and doesn’t belong to them.Under the circumstances, the Application dated 7th July 2022 is dismissed.ii.No orders as to costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAH/JONAHMs. Manani advocate holding brief for Kamara advocate for the Claimant.Echon advocate holding brief for Mr. Mwangi for the Respondent. Ruling as read out on 31. 8.2023. Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023