Mbithi v Mbithi & another [2025] KECPT 93 (KLR)

Mbithi v Mbithi & another (Tribunal Case 34 of 2023) [2025] KECPT 93 (KLR) (29 January 2025) (Ruling)

Neutral citation: [2025] KECPT 93 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 34 of 2023

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

January 29, 2025

Between

Joseph Ndunda Mbithi

Claimant

and

Rose Katheu Mbithi

1st Respondent

Katelembo Athiani Mavuti Farming & Ranching Cooperative Limited

2nd Respondent

Ruling

1. This ruling dispenses with the Notice of Motion Application is dated 22nd April 2024 and supported by an affidavit sworn by one Wilson Muema Masila, the Chairman of the 2nd Respondent and brought under Section 1A and 3A of the Civil Procedure Act and All Enabling Provision of the Law. The Application seeks the following orders:a.That this Application be certified as urgent at the first instance.b.That the firm of B.m.mung’ata & Co. Advocates be granted leave to come on records after judgment in place of the firm of Glady’s Gichuki & Associates.c.That this Honorable court be pleased to stay execution of the orders issued on 14. 12. 2023 pending hearing and determination of this application.d.That this Honourable court be pleased to lift and/or set aside all the proceedings and orders issued on 14. 12. 2023 pending hearing and determination of this Application interparties.e.That upon grant of prayer 4 above, the 2nd Applicant be allowed to file a response to the Respondent’s Application dated 16th August, 2023. f.Cost of this Application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: that the 2nd Respondent was not served with neither the application dated 16th August 2023 nor the ruling dated 14th December 2023. That the 2nd Respondent would like to be granted an opportunity to be heard, and unless the orders are set aside, the Applicant stands to suffer irreparably.

3. The brief background of this matter is that the Claimant filed a Statement of Claim dated 1st February 2013 in which he stated that he was a member of the 2nd Respondent and had acquired and was issued with plot number 991, however sometime late, the Claimant noted that the 1st Respondent had been recorded as the owner of the subject plot number 991. This court issued an order 5th April 2016 directing that the Claimant be issued with title deed for plot number 991, which order was not obeyed, culminating to this court’s ruling of 14th December 2023 which is the subject of the present Application.

4. The Claimant filed a Replying Affidavit dated 11th August 2024 deponed that the Applicants herein were duly served not only in person but also through email and that the assertions that they were not served were false.In their submissions, the Claimants reiterated their Replying Affidavit and submitted that this application is frivolous, vexatious, and an abuse of the court process.

Analysis 5. This Tribunal has noted the Application, the response, and the submissions with regard to this Application. It is not in dispute that judgment was entered in favour of the Claimant as against the Respondents. The question that this Tribunal asks itself is whether the Applicant is entitled to the reliefs sought, to wit setting aside the ruling of this court dated 14th December 2023.

6. The Applicant claims that they were not served with the Application dated 16th August 2023 and also the orders dated 14th December 2023. It is on this basis that he seeks to set aside the ruling.

7. Civil Procedure Rules Order 45, Rule 1 provides thatAny person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

8. This court is therefore in a position to entertain this Application. The Applicant prays for stay citing the reason that they were not served with the application. This would be a sufficient cause for review or set aside. However, the Respondent state that the application was served, and service acknowledged. Indeed from the court file before us, there is an affidavit of service on record by one James M. Mbuvi. There is also an acknowledgement of service with a stamp bearing the 2nd Respondent’s name for 1st September 2023 at 1. 08pm. We feel that it is not enough for the Applicants to simply state that they were not served, without refuting even one element of the service. They have not informed this court whether the alleged stamp is a forgery, or that maybe there was no one at the 2nd Respondent’s offices at that particular time, or that the signature on the service is not for the alleged recipient, one Mbaluka or some other thing that will bring even a small element of doubt that service done. Without this, this court is inclined to believe that service upon the 2nd Respondent was indeed done as evidenced by the affidavit of service on record, dated 5th September 2023.

9. In the upshot of the foregoing, we make the following orders; a.The Applicant’s Notice of Motion Application dated 22nd April 2024 lacks merit and is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 1.2025HON. BEATRICE SAWE - MEMBER SIGNED 29. 1.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 1.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29. 1.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 29. 1.2025HON. PAUL AOL - MEMBER - SIGNED 29. 1.2025Tribunal Clerk MutaiMbuthia advocate for Claimant/RespondentMule advocate for 2nd Respondent/ApplicantMungolwa advocate for 1st Respondent – No appearanceHon. J. Mwatsama Deputy Chairperson Signed 29. 1.2025