Mathenge v Kajiado Tradiary Co-operative Society & 2 others [2025] KECPT 254 (KLR)

Mathenge v Kajiado Tradiary Co-operative Society & 2 others (Tribunal Case 721 of 2019) [2025] KECPT 254 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 254 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 721 of 2019

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

April 29, 2025

Between

Jane Wairimu Mathenge

Applicant

and

Kajiado Tradiary Co-operative Society

1st Respondent

Robert Kamani

2nd Respondent

Robert Kimani & Others t/a Kiserian United Dairy

3rd Respondent

Ruling

1. This ruling dispenses the Chamber Summons Application dated 19th March 2024. The Application is supported by an affidavit sworn by the Applicant JANE WAIRIMU MATHENGE and brought under Order 8 Rule 3 & 5 of the Civil Procedure Rules & Section 3A of the Civil Procedure Act Cap 21 Laws of Kenya and all other enabling provisions of the law. The Application seeks the following orders:a.That this Honourable Tribunal do grant leave to the Claimant to amend her claim.b.That the annexed draft amended claim hereto be deemed as duly filed and served upon payment of requisite filing fees.c.That the costs for this application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: It is necessary to amend the Claim to correctly address the issues in disputes to reflect correct articulated issues chronologically. That the Application to amend the Claim is necessary and that no prejudice will be caused to the Respondent’s rights if the application is allowed.

3. The Respondents opposed the application. In their opposition, they aver that the Claimant has not made full disclosure of material facts to the case. That the Claimant decided to frustrate the Respondents when she was not re-elected as the secretary of the 1st Respondent. That also the allegation of the Claimants are unsupported and that prayers have been overtaken by events since elections have always been held since 2019.

4. The matter was canvased through submissions.

5. In their submissions, the Applicants submitted that the Claimant was acting in person until January 2024 when she retained a counsel. They submit that this court has discretion to allow the amendment and that the amendment will enable the court to determine the real issues and substantive merits of the case. The Claimant relies on the case of Bosire Ogero v Royal Media Services (2015) eKLR. On the issue of whether the amendments introduce new cause of action, the Applicants submit that the amendments do not introduce any new cause of action but rather the issues crystalize the Claimant’s case. They also submit that the amendments have been brought timely and will not prejudice the Respondent.

6. The Respondents, on the other side, submitted that the Claimant has filed the application after 4 years and raised different cause of action and introduces prayers that do not touch on the parties.

Analysis 7. This Tribunal has noted the application, the response and the submissions of the parties.

8. The question before this Tribunal is whether the Applicant is entitled to the reliefs sought, to wit grant of leave to amend the Claim.

9. Section 100 of the Civil Procedure Act and Order 8 Rule 5 (1) of the Civil Procedure Rules, 2010 gives the court power to amend pleadings. Order 8 Rule 5(1) provides as follows:For the purpose of determination, the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any documents to be amended in such a manner as it directs and on such terms as to costs or otherwise as are just.

10. The courts have also dealt with the question of amendment of pleadings extensively. In the Court of Appeal decision in Central Kenya Limited v Trust Bank Limited (2002) 2EA 365 it was held that:“…a party is allowed to make such amendments as maybe necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.”

11. We will now analyze the proposed amendment in light of the above provision of the law and case law. The current statement of claim was filed in November 2019. However, there was a period of time when the matter was paused to allow the parties to pursue mediation, which unfortunately was not successful.

12. On the perusal of the proposed amended Claim, this court notes that there is substantial increase in the number of prayers in the proposed amendment. We note that the current Statement of Claim has 4 prayers while the proposed amended Statement of Claim has 7 prayers. The current prayers are for temporary injunction for an election of 6/9/2019, and fast tracking the presentation of the investigation report done by the office of the commissioner for cooperatives. The proposed amendment on the other hand, has 5 new prayers. This Tribunal notes that the initial prayers have been overtaken by events, notably the election for 6/9/2019. The proposed prayers do not introduce any new cause of action, since they emanate from facts existing in the Statement of Claim.

13. On the question of prejudice to the Respondent, the Respondent had informed this court that he will be prejudiced if we allow the amendment. However, the Respondent did not show how they will be prejudiced. The business of cooperative is for the interests of the members of the cooperative society. This Tribunal finds that the interrogation of the issues brought by the Claimant are in the interest on not only the Claimant, but of all the members of the 1st Respondent. This Tribunal cannot see any inconvenience or prejudice that many not be compensated by costs.

14. In the upshot we find that the Applicant’s Chamber summons dated 19th March 2024 is merited and we order as follows;a.The Plaintiff is granted leave to amend, file and serve its amended Claim within 7 days from the date hereof.b.The Defendant to thereafter amend, file and serve its Amended Statement of Defence if need be, within 14 days from the date of service of further amended Claim and claimant to file Reply within 7 days of service.c.Costs of the application in the cause.d.Mention for directions on 3. 6.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 4.2025TRIBUNAL CLERK JEMIMAHNo appearance by parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025