Robert Njagi Kimotho & Lorna Margeret Kariuki v Nawiri Sacco Society Ltd & Giant Auctioneers [2021] KECPT 534 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.467 OF 2020

ROBERT NJAGI KIMOTHO......................................................1ST CLAIMANT

LORNA MARGERET KARIUKI...............................................2ND CLAIMANT

VERSES

NAWIRI SACCO SOCIETY LTD……………………….......1ST RESPONDENT

GIANT AUCTIONEERS……………………….……….......2ND  RESPONDENT

RULING

1. The matter for determination is Notice of Motion Application dated 24/11/20 seeking the following orders:

i. That this Application be certified urgent and the same be heard ex parte in the first instance.

ii. Spent

iii. This Honourable Court do issue an order directing the 1st Respondent to render and deliver to the Applicants true, accurate and correct accounts and the entire statement of account for the 1st Applicant’s current and loan accounts that were opened at the 1st Respondent.

iv. The costs of this Application be borne by the Respondents.

Based on the grounds on the face of the Application and Supporting Affidavit of Robert Njagi Kimotho, the 1ST Applicant.

2. The Applicant is opposed vide Replying Affidavit of Joseph Mwaniki Kithinji, Credit Manager of 1st Respondent deponed on 16/12/20 filed on 30/4/21.

The Application was ordered to be disposed with by way of Written Submissions.

Applicant filed Written Submissions on 14/4/21. Respondent filed on 18/5/21.

3. The gist of the Application is that the Applicant seeking temporary injunction pending the hearing and determination of the:

i. Instant application and we note that this prayer was spent when interim orders were granted on 26/11/20.

ii. The other prayer is for the 1st Respondent to render and deliver the true accounts and entire statement of 1st Applicant current and loan accounts.

4. We note that in the Replying Affidavit of the Respondent filed on 30/4/21 paragraph 6 provides for the Claimant’s account statement

“….deposit accounts-Customer Statement” marked  as annexture JMK3

We therefore find that the prayer could have been dealt with by filing a notice to produce under Order 11 Rule 3 and therefore this prayer is also spent.

5. The only other issue pending is one of costs which we order to be in the cause.

In the circumstance thereof we give the following directions;

i. Parties to file and serve Witness Statements and documents within 30 days herein;

ii. Mention for  Pre- trial directions on 28/7/21.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH  DAY OF MAY, 2021

Hon. B. Kimemia        Chairperson                          Signed      27. 5.2021

Hon. J. Mwatsama     Deputy Chairperson  Signed      27. 5.2021

Mr. P. Gichuki              Member                       Signed      27. 5.2021

Tribunal Clerk             Leweri

Miss Wachira  for Claimant/Applicant: Present

Hon. B. Kimemia    Chairperson    Signed      27. 5.2021