Mwae v Amondi & another [2025] KECPT 262 (KLR)

Mwae v Amondi & another (Tribunal Case 4/E012 of 2022) [2025] KECPT 262 (KLR) (Civ) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 262 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 4/E012 of 2022

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

February 27, 2025

Between

Dorcas Wanjiru Mwae

Claimant

and

Ochola Viona Amondi & another

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. The matter for determination is the Application dated 02/10/2024 and the issue that arose on 20/11/2024 in regard to the late filing of written submission by the Judgment Creditor.

2. This is also in accordance to the orders of 31/10/2024 which provided that the second application be heard and determined first since it involved an issue of jurisdiction.

3. Accordingly, the application dated 14/10/2024 was stayed pending the hearing and determination of the application dated 22/10/2024.

4. During the mention of the matter on19/11/2024, the parties confirmed that they had filed their written submission. However the advocate for the Respondent judgment debtor submitted that there was an order of strict compliance of the filing of the written submission. That the written submission were dated 13/11/2024 hence were not in compliance hence should be expunged from the records.

5. In response, the advocate for the judgment creditor submitted that the reason of not filing within time was as a result of circumstances beyond their control hence the advocate Mr. Shadrack Wambui had been involved in Road Traffic Accident hence they only filed in the earliest time possible and requested for leave and have the written submission filed/allowed as filed out of time and that they be allowed on record. That the late filing was not prejudice in any manner.

6. In reply the advocate for judgment debtor states that there was no evidence of the Road Traffic Accident and relied on the Case of Nicholas Kiptoo 2014 eKLR.

7. In the circumstances, I address the issue of filing the written submission out of time.

8. On 31/10/2024, the Applicant was ordered to file written submission within 5 days of service of replying affidavit/response and the Respondent was to file their written submission within 5 days of service of written submission of the Application.

9. I note that the replying affidavit was filed on 1/11/2024 as per the receipt attached therein that the service was effected vial email on 1/11/2024 at 4. 28 pm as per affidavit of service on 1/11/2024. I note that 1/11/2024 was a Friday.

10. The Respondent filed their written submission on 8/11/2024

11. The Respondent submitted that the application was to have filed their written submission at 11. 59pm on 6/11/2024 and the applicant had not filed by that date.

12. The Respondent filed their written submission on 8/11/2024 as per the Tribunal stamp.

13. The Applicant filed their written submission dated 13/11/2024 hence were out of the compliance timelines as per the order of 31/10/2024.

14. The Applicant submitted that the advocate Mr. Wambui was involved in Road Traffic Accident hence the reason why the written submissions were filed out of time.

15. The order of the Tribunal was clears in terms of compliance as per order 2 and 5 of 31/10/24 “parties to ensure strict compliance to the timelines”.

16. I note that this order was not complied with. The Applicant filed the written submission leave and/or explanation.

17. The issue was brought up by the Respondent and the Applicant thereby gave the submissions that the reason for late filing was because of RTA. There was no evidence produced to confirm this averment.

18. The Respondent argued that there was a strict timeline compliance and relied on a list of authorities filed on 14/11/20241. Nicholas Kiptoo Arap Korir Salat vs IEBC and 7 Others (2014) eKLR2. Kiru Tea Factory Company Limited vs Stephen Maina Githiga and 13 Ohters (2019) eKLR3. Neeraj Jayantilaly K vs Dancun Cheruiyot and 5 Others (2022) KE ELC 2669 KLR4. National Bank head office vs Wilson Ndolo Sya. CA 119/2002 (2009) KLR.

19. In Teachers Service Commission vs Kenya National Union of Teachers and 2 Others (2013) eKLR, then held that:that …a court order is not a mere suggestion or an opinion or a point of view, it is a directive that is issued after much thought and with circumspection. It must therefore be complied with and it is in the interest if every person that this remains the case. To see it any other way is to open the door to chaos and anarchy and this court will not be the one to open that door.\……..If one is dissatisfied with an order of the court, the avenues for challenging it are also set laws in the law. Defiance is not an option…..”

20. In this case, the orders of Tribunal were clear on the timelines to file the documents and the written submission. Indeed the Tribunal rendered an extra order on “….strict compliance on the timelines ……”

21. The Applicant clearly did not comply to the said orders and filed their written submission way out of time and without the leave of the Tribunal. They only gave a reason after their filing out of time was challenged and this reason was neither substantiated nor supported by evidence of the late filing.

22. Indeed the Applicant only sought leave to file out of time after the filing out of time was challenged.

23. Based on the decision of the cited authority TSC vs KNUT (supra) it is clear that where a party fails to comply with an order, the party must therefore suffer the consequences of non-compliance.

24. In this regard, the consequence is to strike out or expunge the implunged documents/pleadings which are filed contrary of the court order.

25. Documents filed outside timelines and without leave of the court are a nullity and therefore are amenable and be expunged. See Nicholas Kiptoo Arap Korir Salat vs IEBC and 7 Others (2014) eKLR

26. I therefore find that the Tribunal will not accept a document filed out of time without leave of the court. The written submissions of the Applicant herein is therefore expunged off the record.

Ruling On The Notice Of Motion Dated 22/10/2024. 27. The application seeks the following orders:i.That this Honourable court be and is hereby pleased to certify this application as extremely urgent and dispense with it in the first instance.ii.That this Honourable court be and is hereby pleased to forthwith and unconditionally strike out the judgment debtor’s /respondent’s application dated 14th October 2024 in its entirety as this Honourable tribunal is functus officio and bereft of jurisdiction to hear and determine the said application having delivered its judgment on the principal suit on 13th August 2023 and the decree arising therefrom perfected.iii.That costs of this application be borne by the judgment debtor/respondentiv.That this Honourable court be pleased to issue any other order it deems just and fair in the circumstances.

28. The Respondent filed a replying affidavit in opposition dated deponed on 1/11/2024

29. The main issue for determination is whether the Tribunal is vested with jurisdiction and hear and determine the application dated 14/10/2024.

30. We note that the application dated 14/10/2024 seeks the following prayers;i.Freezing of 1st Respondent’s account domiciled 2nd Respondent bank

31. We have noted the gist of the Respondent application dated 14/10/2024

32. I note the parties and the orders sought in the said application

The Applicant’s application. 33. The written submissions of the Applicant having been expunged off the record, we note that the application dated 22/10/2024 seeking to strike out the application dated 14/10/2024 in its entirely on the Tribunal being functus officio hence having no jurisdiction to determine the said application

34. The grounds on the face of the Application is that the Respondent was averted in execution of warrant of arrest and she deposited the Kshs. 2,184,984/= and the Applicant’s Co-operative Bank account hence securing her release.

35. That the Respondent judgment debtor further averred that the she deposited a further Kshs. 2,184,984/= in the same account

36. The applicant avers that there was no further instructions on further recovery hence the rest of the amount recovery goes beyond the jurisdiction of the Tribunal

37. That the said application offends the provision of 576 (1) (b) Cooperative Society Act which prescribes that the jurisdiction of the Co-operative Tribunal is of any dispute concerning the business of a co-operative society.

38. That the said application dated 14/10/2024 offends the doctrine of finality and salient maxim that litigation must come to an end. Cooperative society provision of Section1A(1) and 1B(1)Civil Procedure Act.

39. The Applicant filed a supporting affidavit deponed by the Claimant Dorcas Wanjiru Mwae deponed on 22/10/2024

Respondent’s submissions. 40. In opposition to the application, the Respondent filed a replying affidavit deponed by the Respondent judgment debtor on 1/11/2024, which the Respondent avers that the Tribunal is still vested with jurisdiction to hear and determine the application dated 14/10/2024.

41. That she deposited Kshs. 2,184,984/= into the account if Mwae & associates advocates on 5/10/2024 at Co-operative Bank and on 7/10/2024, the ABC bank limited failed to act on her instructions Cancelling RTG 5 transfer of 4/10/2024 and accordingly debited the sum of Kshs. 2,184,984/= for the second time in the account of the Claimant.

42. That the Respondent tried to reach out to the Claimant, but she was unwilling to initiate a reversal of the erroneous double credit of the decretal sum.

Decision 43. We have considered the submissions of the parties. We note that in this matter, the judgement was entered and a decree issued on 21/9/2023.

44. On 20/7/2024, the judgment debtor was ordered to settle the decretal sum within 14 days of the Ruling, failure to which warrant f arrest was to issue on the 15th day of the Ruling.

45. The warrant of arrest was executed and the judgment debtor was arrested. The judgment debtor on arrest paid the decretal sum and hence the claim was deemed as settled.

46. Thereafter, the judgment debtor avers that she did a double payment to the judgment creditor and filed an application dated 14/10/2024 against which this application was made in order to determine whether the Tribunal has discretion to determine an application after full settlement of the claim.

47. We therefore note that the mandate of the Tribunal is to determine the claim as filed. Once the claim is fully settled, then the Tribunal becomes functus officio and closes its file having come to the end of the litigation.

48. We note that in the application dated 14/10/2024, goes further than the decretal sum and even extends to parties who are not in the main claim. The Tribunal has accomplished its mandate, marked the matter as settled and closed its file in regard to the claim as filed. We note that we cannot extend our jurisdiction to go beyond the settlement of the claim under its collection of clerical errors. We note that the gist of the application dated 14/10/2024 is not based on correction of clerical errors but on other issues.

49. In conclusion, we find that in this matter, the Tribunal has no jurisdiction, we therefore down our tools. The Application dated 22/10/2024 is therefore with merits and allowed to the extent that the claim is marked as settled and the file is ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 2.2025HON. PAUL AOL MEMBER SIGNED 27. 2.2025