Samuel Kimondo Maingi v Telepost Sacco [2021] KECPT 542 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.403 OF 2020

SAMUEL KIMONDO MAINGI..............................CLAIMANT

VERSUS

TELEPOST SACCO...........................................RESPONDENT

RULING

1. An Application dated 23. 11. 2020 and filed on 24. 11. 2020 has been brought under provisions of Order 13 Rule 2 of the Civil Procedure Rulesby the Claimant seeking for orders inter alia:

a. Judgment on admission be entered in favour of the Claimant/Applicant in the amount of Kshs.159,200/= plus costs and interest.

b. Costs of this Application be awarded to the Claimant.

The Application is supported by the ground on the face of it and affidavit sworn by Odhiambo Geoffrey Genga,Advocate for Claimant sworn on 23. 11. 2020.

2. The Respondent has opposed the Application by filing a Replying Affidavit sworn by Samuel Maumbe on 28. 12. 2020.

3. The Tribunal gave directions as to the hearing of the present application. The Application was canvassed by way of written submissions. The claimant filed his submissions dated 7. 1.2021 on 12. 2.2021 and the Respondent filed theirs on 8. 3.2021.

4. Claimant’s Case

The instant application, the Claimant contends he is entitled to have a refund of his shares having been a member of the Respondent – Tele-posta Sacco Society Limited.

He is seeking for judgment on admission to be entered in his favour for the audit of Kshs.159,200/= plus cost and interest as against the Respondent.

5. Respondent’s Case

The Respondent on the other hand vide a Replying Affidavit sworn by one Samuel Maumbe on 28. 12. 2020. opposed the application on the grounds that:

a. The Respondents have not yet refused to refund the deposit to the Claimant but there is a backlog of refunds and thus payments are being done on the basis of first in first out basis.

b. They are currently making payments for the 2017 claims. They are overwhelmed by the withdrawals.

6. Issues for determination

This issues for determination in the Application dated 23. 11. 2019 are:-

a. Whether Replying Affidavit should be admitted

b. Whether the Claimant has established a proper basis for the grant of the orders sought.

c. Who should meet costs of the Application?

7. Issue II- Whether the Claimant has established a proper basis for the grant of the Orders sought

The Tribunal has jurisdiction to make orders regarding judgment especially on admission by the Respondent. Order 13 Rule 2 Civil Procedure Rule, 2010, under which the Claimant sought entry of judgment on admission provides:

“ any party may at any stage of a suit where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just.”

8. In Cassman – vs- Sachania (1982) KLR 191 the court held:

“ granting judgment on admission of facts is a discretionary power which must be exercised sparingly in only plain cases where the admission is clear and unequivocal.. Judgment on admission cannot be granted where points of law have been raised and where one has to resort to interpretation of documents to reach a decision.”

9. The Claimant relied on paragraph 2 of the Respondents Statement of Defence which reads:

“ The Respondent avers that the Claimant’s deposits are Kshs.159,200/= exclusive of share capital”

10. Issue I: Whether Replying Affidavit should be admitted

The claimant’s submissions dated 23rd November 2020, further seek to have the application be deemed unopposed as the Replying Affidavit filed by the Respondent dated 28. 12. 2020 was not commissioned.

The power to strike out pleadings due to infraction of the rules of procedure in discretionary. Any adjudicator has to consider all the circumstances of the case. It is our view not taking the Replying affidavit into consideration is tantamount to sacrificing justice upon the Respondent. The Tribunal is not a court of technicalities and thus will not allow the view point as taken by the Claimant.

It shall be counter to the provisions of Article 159 (2) (d) of the constitution of Kenya which provides that justice shall be done without due regard to technicalities.

11. Issue III: Who should meet the costs of the Application?

Costs in the cause.

12. Conclusion

- We hereby enter judgment in favour of Claimant on admission by Respondent for Kshs.159,200/= plus costs and interest.

JUDGMENT 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. Gitonga Kamiti Member Signed 27. 5.2021

Tribunal Clerk Leweri

Maumbe on behalf of Respondent

Ngenga Advocate for Claimant

Mention on 27. 7.2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021