LSK Sacco Society Limited v Kimani [2025] KECPT 346 (KLR)

LSK Sacco Society Limited v Kimani (Tribunal Case 764/E791 of 2022) [2025] KECPT 346 (KLR) (26 June 2025) (Ruling)

Neutral citation: [2025] KECPT 346 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 764/E791 of 2022

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

June 26, 2025

Between

LSK Sacco Society Limited

Claimant

and

Henry Njuguna Kimani

Respondent

Ruling

1. For determination before this Tribunal is a Notice of Motion dated 23/10/2024 which was filed under Certificate of Urgency seeking for orders:i.Spentii.That the Tribunal be pleased to grant stay of execution of the Decree dated 25/1/2024 pending the hearing and determination of the application.iii.That the Tribunal to vary the consent order dated 17/4/2024 and direct the Judgement debtor to settle the principal Loan Balance Ksh.1,408,117 by paying Kshs, 20,000/= instead of Kshs 50,000/= until payment of full commencing on 30/11/2024. iv.That in the alternative, the Respondent/Applicant be granted an opportunity to renegotiate with the Claimant /Respondent with an intention to vary the Consent order dated 17/4/2024. v.That the Tribunal to grant such further orders as it May deem fit to grant.vi.That the costs of this application be provided for.

2. The Notice of Motion is anchored on the face of it on the provisions of Article 159 of the Constitution, Section 3A, of the Civil Procedure Act, Order 22 Rule 22, Order 50 Rules 6 and Order 51 Rule 1 and 3 of the Civil Procedure Rules and Section 4 of the Fair Administrative Actions Act.The Respondent/ Applicant provided 13 grounds to support the Application.

3. Prior to the instant Application, the Claimant and the Respondent had filled a Consent dated 17/4/2024 and the Tribunal adopted it as an order of the Tribunal.The terms of the Consent was coined as follows “The principle Loan balance plus interest and costs due in this matter is Kshs 1,513,117/= which amount shall be settled and paid in full by Judgement debtor on or before every month in equal instalments of Ksh,50,000/= until payment in full commencing 30th May,2024.

4. This Consent Principally stayed the execution of the Decree dated 25/1/2024 and Tribunal Ordered the file to be closed.

5. Given that the Respondent/Applicant filed an Application dated 23/10/2024 which borders on variation of the adopted Consent Order, the Tribunal ordered the parties to file and serve written Submissions within 14 days from the date of mention which was 24/14/2025.

Analysis and Determination 6. Having analyzed the facts and evidence contained in the Tribunal’s record, we have isolated two (2)Issue for determinationa.Whether the Tribunal can vary the contents of the Consent Order or grant an opportunity to the parties to renegotiate the terms?b.Who will bear the costs of this Application?

Whether the Tribunal can vary the contents of the Consent Order or grant an opportunity to the parties to Renegotiate the terms? 7. Courts have pronounced themselves in the matter of Consent orders by stating that they should be treated as binding contracts. Any application to vary a Consent Order must meet a high legal threshold similar to the grounds that is used to vary a binding contract.In this regard, the Tribunal draws guidance from the case of Brooke Bond Liebig Ltd Vs Mallya(1975) where the court held that “A Consent Order cannot be varied or discharged unless obtained by fraud or collution or by an agreement contrary to policy of the court or misapprehension or in ignorance of material facts”

8. Upon examination of the grounds adduced by the Respondent / Applicant to vary the consent order evidence to effect that the Consent Order was obtained by fraud, Misrepresentation, Collusion, ignorance or any ground that would vitiate the order.

9. Further, Under paragraph 4 of the ground to back up the Application, we note that the Respondent/ Applicant state that he made significant effort to settle the decretal sum in instalments presumably as per the Consent Order.While the Tribunal does not wish to dwell on the ‘whys’ and ‘how’s’ , we not that the Respondent/ Applicant made payment of Kshs. 25,000/= on 28/6/2021 and another Ksh.25,000/= on 6/10/2024. There is no any other evidence any payment neither did the Respondent/ Applicant provide or demonstrate any difficulty that poses a challenge to him to continue to pay the monthly Sum as per the Consent Order.

10. In any case, if he had been paying the instalments of the amounts that he is now seeking to be allowed to vary the amount to, the tribunal could understand the attempt, but now that he stopped making payments, the question is Why?

11. Similarly, if the Respondent/Applicant could stop paying the instalment indicated in the Consent Order without informing or discussing with the Claimant, Respondent, one would ask what assurance is these that he would honor the next Consent Order. Most probably the answer would be negative.

12. On the ridder that the alternative that is if the tribunal decline to vary the Consent Order dated 17/4/2024, he the Respondent/ Applicant be granted an opportunity to renegotiate with the Claimant/Respondent with an intention to vary the Order.While the Tribunal may not have a problem with the preposition, what makes us wonder is that at the time they met and signed the Consent Order dated 17/4/2024, the Respondent/ Applicant did not seek for an Opportunity from the Tribunal so why at this point in time?

13. If the Respondent/ Applicant felt that he needed to renegotiate the Consent Order with the Claimant/Respondent, nothing could stop him except himself.

14. In Conclusion, we find that the prayers contained in the Notice of Motion Application filed by the Respondent/ Applicant lack merit and are disallowed.

Orders 15. We therefore make the following Ordersa.Prayer1 – Spentb.Prayer 2 – Spentc.Prayer 3- Does not meet the threshold therefore lacks merit and must faild.Prayer 5- No further Orderse.The Cost of this applicant will be borne by the Respondent/ Applicant.It is so OrderedUpshotApplication Notice of Motion dated 23/10/2024 is dismissed as the same has no Merit with Costs to Claimant/ RespondentFile ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE - MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 26. 6.2025HON. P. AOL - MEMBER SIGNED 26. 6.2025Tribunal Clerk GechikoMs. Njoroge for Claimant/ RespondentWayai Mugo Advocate for the Respondent/ Applicant- Warrant of arrest issued.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025