Magut & 6 others v Kitisuru Sacco Society Ltd & another [2023] KECPT 921 (KLR)

Magut & 6 others v Kitisuru Sacco Society Ltd & another (Tribunal Case 456 of 2020) [2023] KECPT 921 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 921 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 456 of 2020

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

August 31, 2023

Between

Josphat Magut & 6 others

Claimant

and

Kitisuru Sacco Society Ltd

1st Respondent

Edward Mutie Ndiku

2nd Respondent

Ruling

1. This Tribunal has been called upon to determine two Applications:i.The first one for joinder dated 28th July 2021,ii.and the second, for contempt dated 29th December 2022.

Joinder of Parties 2. Two Applicants, Redempta Muli and John Munyoki, filed an Application for joinder as Plaintiffs on the grounds that they are members of the 1st Respondent Sacco and their presence in this suit is necessary to help the court determine the issue before it as when allowed, they will bring on board propositions of law and fact that will assist the court determine the suit. They also say that their inclusion or joinder is necessary in the interest of justice.

3. The 1st Respondent has opposed the joinder on the grounds that the Civil Procedure Rules clearly outlines the Principles of joinder, and that the proposed parties for joinder have not given any plausible reasons as to why they should be made parties in the proceedings – That they were not guarantors of the loan in question and as such, their application is either in bad faith or mischievous.

4. Order 1 rule 10(2) of the Civil Procedure Rules provides for joinder and states that:“at any stage of the proceedings, upon application by either party or ……. to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.”

5. The court of Appeal in JMK -V- MWM & Another [2015]eKLR reinforced this position when it stated that:

6. Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P.887), state that:“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.”

7. This Court adopted the same approach in Central Kenya Ltd. v.Trust Bank & 4 others, CA No. 222 of 1998, when it affirmed that the guiding principle in amendment of pleadings and joinder of parties is that:“all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”

8. The High Court in Joseph Njau Kingori .v. Robert Maina Chege & 3 Others[2002]eKLR specifies of what to consider before joining a party to a suit. They advised courts and Tribunals to consider:i.Whether the party is a necessary party,ii.Whether the party is a proper party,iii.Whether there is relief flowing from the party to the Plaintiff, and lastly,iv.Whether the ultimate order or decree cannot be enforced without the participation of the party seeking to be enjoined in the proceedings.

9. This Tribunal has considered the four areas, and it is not clear or it has not been clearly demonstrated to this Tribunal the personal interest or stake the two parties seeking to be joined have in this suit, or the likely prejudice they’ll suffer in the case of non- joinder. As such, we are not satisfied with the reasons given and therefore dismiss the Application.

Contempt Application 10. This Tribunal on 2nd September 2021, made injunction orders to the effect that:“Pending the hearing and determination of the claim, a prohibitory injunction be and is hereby issued restraining the Respondents by themselves, their servants, agents, employees and/or anyone within their authority from making any deduction against the Claimants accounts in a bid to offset the 2nd Respondent’s loan. The injunction orders were issued as a result of an application by claimants, where they had successfully argued that only agreed to be guarantors to the loan by the 2nd Respondent on the condition that the amount they had guaranteed of Kshs. 1,602,771/= will not vary, change or revoked without their express consent, and that the loan agreement they signed does not allow the borrower to change the terms without their express consent nor does it allow the borrower to withdraw any of his benefits without first clearing the loan they had guaranteed.”

11. The Claimants on 29th December 2022, made an Application for the contemnors to be ordered to appear in court and explain why they have disobeyed the orders given on 2nd September 2021, and if they fail to, to be committed to 2-7 years in civil jail and pay a fine of Kshs. 50,000/= each. The Application was brought on the grounds that the contemnors went ahead arrogantly and with impunity to deducted them a sum of Kshs. 566,429/= on 18th November 2022, which included a sum of Kshs. 70,267/= that they were restrained by the orders of 2nd September 2021.

12. The accused contemnors in their submissions, claim that the application is founded on misrepresentation of facts which are devoid of any truth, and that the Claimants are not honest with the tribunal as they have not disclosed fully all the circumstances and facts surrounding the instant case. The accused contemnors in their Replying Affidavit are clear that they have not deducted even a single shilling from the claimants in relation to the recovery of the loan they had guaranteed the 2nd Respondent after the orders of the Tribunal were issued, and that what the Claimants are indicating as the deductions made relate to other loans that had been advanced to them.

13. The Tribunal has looked at the evidence before it, and is not convinced that it’s orders were disobeyed as the Claimant in question was also sourcing another loan with the 1st Respondent that had nothing to do with his role as a claimant and on Guarantors in this suit.

14. I therefore dismiss the Application for contempt dated 29th December 2022 and give the following directions:i.Parties to file and exchange their witness statements and documents in relation to the main hearing within 14 days of this ruling.ii.Mention for directions on 11/12/2023.

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 JemimahGitonga Muriuki advocate for the ClaimantOndieki advocate for the Respondent/Applicant.Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023