Machakos Mwalimu Housing Co-operative Limited v Munene [2023] KECPT 444 (KLR)

Machakos Mwalimu Housing Co-operative Limited v Munene (Claim 5 of 2019) [2023] KECPT 444 (KLR) (27 April 2023) (Judgment)

Neutral citation: [2023] KECPT 444 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Claim 5 of 2019

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

April 27, 2023

Between

Machakos Mwalimu Housing Co-operative Limited

Claimant

and

Franco Munene

Respondent

Judgment

1. On March 4, 2021, the tribunal entered judgment against the defendant herein after the case proceeded to hearing on formal proof pursuant to interlocutory judgment obtained by the plaintiff.Thereafter, the plaintiff returned to court with an application which is a notice of motion dated December 31, 2021, filed on February 2, 2022, seeking orders that:-a.The honourable tribunal be pleased to review/vary and/or set aside its judgment and decree delivered on March 4, 2021. b.In the alternative the honourable tribunal be pleased to correct and/or rectify its judgment delivered on March 4, 2021. c.The costs of this suit be provided for.

2. The application is based on the grounds that the judgment has some mistake or error apparent on the face of the record, hence there is sufficient reason to review the same.

3. The application is supported by the affidavit of one Joseph Muturi Gicheha who depones that he is the acting Chairperson of the plaintiff.

4. In the supporting affidavit sworn on December 30, 2021 filed on February 2, 2022, the deponent avers that the tribunal failed to make orders in the judgment in line with a deed of settlement annexed to the supporting affidavit and marked “JMG2” .

5. Further, the plaintiff avers in the supporting affidavit that the tribunal did not award it costs in its judgment.

Determination 6. We have perused the application and the supporting affidavit and also the deed of settlement and the judgment of this tribunal and we are satisfied that the tribunal made orders as prayed in the plaint.

7. The court cannot issue orders or prayers which were not sought by the parties.

8. We also find after perusal of the judgment that indeed; the tribunal made an order for costs and interest at court rates as indicated on page 7 of the judgment.

9. In view of the foregoing we find no reason to review or set aside the judgment dated March 4, 2021.

10. The plaintiff’s application dated December 30, 2021 is therefore dismissed with no order as to costs.

UpshotWe find no merit in the application dated December 30, 2021 and as such the same is dismissed with no orders as to costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL , 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by parties.Ruling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023