Mwangi & another v Kariuki (Claiming on his Own Behalf and on Behalf of 26 others) [2023] KEHC 25465 (KLR)

Mwangi & another v Kariuki (Claiming on his Own Behalf and on Behalf of 26 others) (Civil Appeal E682 of 2021) [2023] KEHC 25465 (KLR) (Civ) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25465 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E682 of 2021

JN Mulwa, J

November 16, 2023

Between

Simon Gitahi Mwangi

1st Appellant

James Karibu

2nd Appellant

and

James Kariuki (Claiming on his Own Behalf and on Behalf of 26 others)

Respondent

(An appeal against the Judgment/Ruling/Awards of the Chairperson of the Co-operative Tribunal of Kenya at Nairobi in Tribunal Case No. 242 of 2016 delivered by Hon. B. Kimemia on 23/7/2021 Tribunal Case 242 of 2016 )

Judgment

1. This court set today’s date for the judgment of this appeal. However, when I retired to prepare the judgment herein I noted that the Respondents had not submitted in response to the Appeal and that he stated that the Appellant lacks audience before this court on grounds that :-a.That the Appellants have failed, refused and/or neglected to file submissions within the time they sought and which this Court allowed,b.That they pointed out to the court that the leave the Appellants had obtained in Misc. Civil Application No. E459 of 2020 was to file an appeal against the Ruling delivered on 23/7/2020 at the Co-operative Tribunal declining to review and set aside its Judgment delivered on 19/9/2017. The Appellants apparently have now appealed against the judgment of the Co-operative Tribunal and not the Ruling.c.That on 7/10/2021 while allowing the Appellants to appeal against the Ruling of the Tribunal delivered on 23/7/2020, Lady Justice Jayden Thuranira directed that the Appellants pay costs for the Miscellaneous Application to date none has been paid.

2. On the issue of costs, this court notes that in the Miscellaneous Application No. E459 of 2022, the Judge allowed the application and costs in cause on paragraph 8 of the Ruling stated that: -“With the foregoing, I allow the application. The Appeal to be filed within 14 days from the date hereof. Costs in cause.”Therefore, the allegations by the Respondent that the Appellants ought to have paid costs does not stand at all since the costs were to be paid once the appeal is determined.

3. On the issue of the Appellants appeal being against the Judgment and not the ruling dated 23/7/2020 at the Co-operative Tribunal, it is clear from the Record of Appeal that the Appellant are not clear on what they are appealing from, from the grounds of Appeal ,it is noted that they are appealing from the Judgment/Ruling/Award /Decree before the Co-operative Tribunal which is not the case since their application for leave was to appeal against the Ruling dated 23/7/2020 and not the Judgment of the Tribunal which still stands.

4. For the foregoing, this appeal is dismissed with costs to the Respondents.

Orders accordingly.

DELIVERED, DATED AND SIGNED IN NAIROBI THIS 16THDAY OF NOVEMBER 2023. JANET MULWAJUDGE