Siraji Sacco Society Ltd v Ephantus Karithi Mwangi t/a Anek Enterprises [2023] KECPT 1072 (KLR)

Siraji Sacco Society Ltd v Ephantus Karithi Mwangi t/a Anek Enterprises (Tribunal Case Miscellaneous E003 of 2023) [2023] KECPT 1072 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1072 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case Miscellaneous E003 of 2023

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

November 30, 2023

Between

Siraji Sacco Society Ltd

Claimant

and

Ephantus Karithi Mwangi t/a Anek Enterprises

Respondent

Ruling

1. Before this Tribunal is as Application dated 30th March 2023 by the Claimants which seeks for the following orders:a.That leave be granted to the Applicants extending time to file a suit.b.Costs of the Application.

2. The Application is premised on the refund of Liquidated sum of Kshs. 3,676,547/= from the Respondents whish was erroneously paid to him on 29/11/2019. In support of the Application, the Applicants filed a Certificate of Urgency, ex-parte Originating Summons, Supporting Affidavit sworn by their Credit manager Mr. Kennedy Mathei Nguli and Anek Enterprises Statements of Accounts all 30th March 2023.

3. In response, the Respondents filed on 5/6/2023 five (5) grounds of opposition listed as follows:a.That, the Applicant has no legal standing or legal right to Claim money transacted from a personal Account.b.That, the Application is an afterthought as it has been filed after a long, inordinate and unexplained delay.c.That, the Application should be dismissed on the grounds that it is made in bad faith, it is malicious, vexatious, frivolous and a waste of the Tribunal's time.d.That, the Applicant has not demonstrated sufficient cause or at all to warrant a grant of the orders sought.e.That the Application has no merit and should be dismissed with costs.To support his grounds for opposition, the Respondent through an Application dated 5/6/2023 filed a Replying Affidavit.

4. On 13/9/2023, the Tribunal set the date of 30/11/2023 to be the day when a ruling will be delivered.

Background. 5. The Claimant confirm that the Respondent is their member. The Claimant state that on 29/11/2019, an amount of Kshs. 3,676,547. 00/= was paid into the Account of the Respondent. Earlier, the Claimant and the Respondent had arrangements to the effect that the Respondent was allowed to make overdrafts in his FOSA accounts while his supply contract payments would be channeled through his FOSA Account to repay or reduce the overdraft.

6. It is the Claimant's statement that before the payment was made, the Respondent had made a request to be advanced with the amount and presented to the Claimants a purchase order from Flamingo Horticulture Limited as proof that he was expecting to be paid the amount. Later, the Claimants learnt that the Respondent had advised Flamingo horticulture Ltd had to pay the amounts of the purchase order to his personal bank accounts instead of the FOSA account held by the SACCO as earlier agreed.

7. Further, the Applicants state under paragraph 11 that the "cause of action arose on 29/11/2019 and by virtue of Section 4(2) of the Limitations of Actions Act, this suit ought to have been filed in the Tribunal within 3 years which was to be on 29/11/2022. While opposing the Application among other defenses, the Respondent stated in paragraph 15 of his Replying Affidavit that:“The Application is an afterthought as it has been filed after a long, inordinate and unexplained delay"While the Claimant in paragraph 11(i) of their Written Submissions state that:“The Respondent was engaged with the view to rectify things on several occasions without success something that the Respondent acknowledged under paragraph 12 of his Replying Affidavit"We have read and considered what is deponed in the documents filed by the Claimant and the Respondent and are of the view that we have to determine the issue of extension of time first before other issues being sought are determined.

Determination. 8. Rule 6 of the Co-operative Tribunal (Practice and Procedure) Ruled 2009 provide that:“The provisions of the Civil procedure Rules (Cap 21 Sub Lea) shall apply in respect to the proceedings of this Tribunal"

9. On the other hand, the Civil procedure Act/Rules grant unfettered discretionary powers to the Court to extend time for filing or Commencement of a suit, However, those powers must be exercised judiciously.

10In determining the factors that govern the exercise of the discretion to extend time, the Court of Appeal in the Case of Leo Sila Mutise Vs. Rose Hellen Wangare Mwangi No. 255 of 1997 stated factors to be:a.Length of the delay.b.The reasons for the delay.c.The chances of succeeding of this Application is granted.d.The degree of prejudice that the Respondent shall suffer.

11. In the instant case, the Claimants filed their Applicant after 4 months of the dateline of 29/11/2022 and provided reasons for the delay as stated in their Witness Statement; Paragraph 11(i) which statement read as follows;“That the Respondent was engaged with the view to rectify things on several occasions without success something that the Respondent acknowledged under paragraph 12 of his Replying Affidavit."

12. The words several occasions have caught the attention of this Tribunal and we consider that the testing of the veracity of these 2 words during hearing would assist the Tribunal to arrive at a fair and just determination of the suit.

13. Further the Claimant gave another reason for the delay at paragraph 11(ii) and stated as follows;“That the Applicants prevailing financial status due to the effects of Covid financially incapacitated the Applicant and had to wait for the country's economy to improve. We humbly call upon this court pursuant to sec 59 as read together with Sec. 60 of the Evidence Act to take judicial notice that indeed Covid pandemic negatively affected all sectors in Kenya and the Applicant herein was never spared."

14. From the plain reading of this statement the Claimant attribute the delay to file this suit to the effects of Covid 19, a fact which sound passively persuasive because even the Courts were affected at the time of Covid 19.

15. On prejudice, we have considered the Submissions of the Claimant and the Respondent on the issue of who would suffer prejudice, should the Application be allowed or not allowed.

16. The Respondent contends that he would suffer great irreparable harm because he stands to lose his time and clients as a reputable business man if the Application is allowed. the Applicants on the other hand contend that they will suffer loss if the Application is snot allowed in the sense that members deposits would be lost. Although the averment by the respondent is not persuasive, the reasons advanced by the Applicants may be true.

17. More fundamentally, we consider that the interest of justice demand that a party is accorded every reasonable and available opportunity to ventilate their grievances without undue regard to technicalities of procedures as advanced by the Respondent. In this regard we draw our guidance in Rule 4 of the Co-operative Tribunal (Practice and Procedure) Rules 2009 which state:

18. The Tribunal shall have power and discretion to decide all matters before it without undue regard to technicalities of procedure."

19. Finally, in light of all that we have discussed herein, we find that the Application dated 30th March 2023 has merit and it is therefore allowed.

Orders. 20. We order as follows.a.The Application dated 30th March 2023 is allowed.b.No orders to costs.c.Claim to be filed within 21 days.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER,2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023*HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023In presence of:-Mburu advocate holding brief for Opiyo for Claimant/ApplicantMs. Wakori advocate for the Respondent.