Sang v Tuigong & another [2022] KECPT 165 (KLR)

Sang v Tuigong & another (Tribunal Case 255 of 2018) [2022] KECPT 165 (KLR) (Civ) (17 February 2022) (Ruling)

Neutral citation: [2022] KECPT 165 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 255 of 2018

J. Mwatsama, Vice Chair, P. Gichuki & M. Mbeneka, Members

February 17, 2022

Between

Philemon Kibet Sang

Claimant

and

Evans Tuigong

1st Respondent

Chairman Kabiyet Savings & Credit Society Limited

2nd Respondent

Ruling

1. The matter for determination is the Application Notice of Motion dated 21. 7.2021 brought under Article 50 (1) and 159 (2) (d) Constitution of Kenya 2010, Section 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act 2010, Order 40 , Rule 1 of the Civil Procedure Rules and all enabling provisions of the law.The said Application seeks for Orders:-a.Spentb.Spentc.That there be an Order for Stay of Execution and/or further execution of the Decree /Certificate of Costs pending the hearing and determination of this Application inter parties.d.That such other orders be made as are just and expedient.e.That costs hereof be provided for.The same is premised on the grounds on the face of the Application to which the Applicants avers. The Tribunal vide its Judgment delivered on 15. 10. 2020 ordered the 2nd Respondent/Applicant to pay Kshs. 73,600/= as value for cow plus costs and interests.The Claimant/Respondent filed a bill of cost which was assessed at Kshs. 45,465/=.The Respondent/Applicant paid the entire amount being value of cow plus costs.That without justification Claimant/Respondent filed another Bill of Cost and on 13. 5.2021 instructed Auctioneer to proclaim 2nd Respondents goods to recover the amount of Kshs. 62,440/=.

2. The Application is supported by the Affidavit of Evans Tuigong Manager of 2nd Respondent he avers they paid Claimant/Respondent Kshs. 119,165/= and attached copy of cheque marked ETB.That on 13. 7.2021 their Advocate advised to make additional payment of Kshs. 16,875/= being additional costs. They drew a cheque and forwarded to onward transmission and attached copy marked ET7. On 15. 7.2021 they were served with proclamation of attachment of movable property Notice in Execution. Being that there are 2 Certificate of Costs and aggrieved by the same there is need for clarification on costs payable to the Claimant.The Respondent were not aware of the 2nd Bill of Costs and subsequent Ruling.They therefore pray or the Application to be allowed as prayed.

3. The Claimant/Respondent filed a Replying Affidavit sworn on 3. 8.2021 and state the Application is misplaced as it seeks for no specific order. That there is no prayer seeking for any order for determination in the Application.The Claimant avers the initial cost of Kshs. 45,565/= was arrived at by court in its own mention and the Claimant/Respondent filed a Bill of Costs which was taxed to scale and assessed at Kshs. 62,440/=.That even if Respondent had paid extra costs vide cheque annexed as ET7 the same had not been received by the Respondent’s Advocate.

4. The Respondent/Applicants filed a Further Affidavit sworn on 20. 8.2021 by Evans Tuigong and responded to the Replying Affidavit by stating the Kshs. 45,565/= were properly assessed at by the Tribunal and thus a Certificate of Costs for Kshs. 119,165/= was issued and Claimant/Respondent was paid.The 2nd Certificate of Costs was untenable and would condemn Claimant/Respondent to pay for costs twice which amounts to unjust enrichment.The cheque of Kshs. 16,875/= is yet to be forwarded. The parties filed their submissions and Applicants filed their written submissions dated 27. 9.2021 on 28. 1.2022 and Claimant/Respondent had not filed their submissions as at the time of writing this Ruling.

5. The issue for consideration is one whether the Certificate of Costs dated 18. 6.2021 is valid?

He matter at hand has 2 certificate of costs at hand. The 1st is dated 22. 10. 2020 for Kshs. 45,565/=. The second is dated 18. 6.2021 for Kshs. 62,440/=.What we also cannot comprehend is why the Tribunal issued 2 Certificate of Costs.The other question we are groping with is why the Claimant/Respondent filed another Certificate of Costs, if not satisfied with the costs in the 1st Certificate of Costs dated 22. 10. 2020. We also wonder why upon filing of their Bill of Costs dated 4. 1.2020 filed on 19. 11. 2020 and in their submissions they did not bring to the attention of the Tribunal the existence of the earlier Certificate of Costs?We find the Claimant/Respondent did not or were not acting in good faith noting that the payment was made vide cheque on 30. 11. 2020. We shall not delabour the point of how and when the two certificate of costs were issued.We find the Claimant/Respondent have not acted in good faith and move so on disclosure and order the 1st Certificate of Costs to be the one that is valid.As per the Rule Cooperative Tribunal Practice and Procedure Rule we recall the 2nd Certificate of Costs.The certificate of costs dated 22. 10. 2020 is validated.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2022. Prepared by:Hon. J. Mwatsama Deputy Chairperson Signed 17. 2.2022Mr. P. Gichuki Member Signed 17. 2.2022Mrs. M. Mbeneka Member Signed 17. 2.2022Tribunal Clerk R. LeweriNo appearance by both parties.File marked as closed.Hon. J. Mwatsama Deputy Chairperson Signed 17. 2.2022