Vogg & 10 others v Marindich & another [2023] KECPT 851 (KLR)

Vogg & 10 others v Marindich & another (Tribunal Case 203 of 2019) [2023] KECPT 851 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 851 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 203 of 2019

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

August 31, 2023

Between

Cyrus Onkeo Vogg & 10 others

Claimant

and

Edison Kibiwott Marindich

1st Respondent

Chai Sacco Limited

2nd Respondent

Ruling

1. There are three Applications before us for determination all filed by the 1st Respondent/ Judgment debtor. The Applications are;a.The notice of motion application dated November 24, 2022, filed on even date.b.The notice of motion application dated November 29, 2022, filed on even date.c.The notice of motion application dated February 7, 2023.

Application dated 24. 11. 22 2. In this Application the 1st Respondent seeks orders;i.Spent.ii.That have be granted the firm of E.S Ochieng and Company Advocates to come and record on behalf of the 1st respondent after judgement and this application be deemed properly filed in the tribunal.iii.spent.iv.That the honourable tribunal be pleased to find and order that what was due to the 2nd Respondent as at the time of the judgement was the admitted sum of Kshs. 2,301,335. 28 and not Kshs. 5,674,898. 84 which monies the 1st Respondent is currently settling directly to the Claimants.v.That the Honourable Tribunal be pleased to discharge the orders directing the 1st Respondent to pay the 2nd Respondent any outstanding loan arrears the same being paid directly to the Claimants.vi.That the costs of this application be borne by the 2nd Respondent;

3. The Application is being premised on the grounds let out thereunder and Supporting Affidavit of the Claimant, Edison Kibiwott Marindich, sworn on 24th November 2022 and filed on even date.

4. The main ground of the application is that whereas the court made Judgment of Kshs. 5,674,898. 84/=, the 1st Respondent has paid the sum of Kshs. 1,905,427/= directly to the 2nd Respondent the recoverable balance of Kshs. 2,301,335. 28/= which amount was recovered from the Claimant by the 2nd Respondent and which amount is admitted to by the 1st Respondent and is currently working on the best formula to settle. The 1st Respondent Claims that the 2nd Respondent wishes to take advantage of the Court’s Judgement to illegally extort extra payments from the 1st Respondent and if not stopped, the 1st Respondent shall be prejudiced. The 1st Respondent states that it is in the wider interest of justice that the Application under order 9 rule 9 & 10 of the Civil Procedure Rules be allowed.

5. In his Affidavit, the 1st Respondent states that though he borrowed Kshs. 3,900,000/= the loan due to the 2nd Respondent was fully paid and the sum of Kshs. 2,301,335. 28/= recovered from the Claimants is admitted. The 1st Respondent avers that it is for this reason that the 2nd Respondent did not participate in the trials since it had received all payments due to them. That after the judgement of the court, the 2nd Respondent resurfaced and demanded an outrageous amount of Kshs. 5,674,898. 84/= allegedly unknown to the 1st Respondent. that the decree obtained by the 2nd Respondent is inaccurate and defective for allegedly capturing orders that the Honourable Tribunal discharged in the Judgement. The Respondent filed its combined submissions in respect of its three Applications aforesaid.

6. The 2nd Respondent opposed the Application of the 1st Respondent vide a Replying Affidavit sworn on 8th February, 2023.

7. The 1st Respondent’s Replying Affidavit is largely in line with the case of the Claimant, setting out the types and of loan advanced by the 2nd Respondent to the 1st Respondent on the guarantee of the Claimant’s justifying the judgement of Kshs. 5,674,898. 84/=.

8. The 2nd Respondent states it had an obligation of persuing the 1st Respondent to ensure that the guarantor’s fund have been refunded and acknowledges receiving the decree with a request to assist in the execution.

9. The 2nd Respondent further filed its Written Submissions dated 5th May, 2023 wherein it submitted extensively in opposition to the 1st Respondent’s Application,

Analysis and determination. 10. We have considered the 1st Respondent’s Application, supporting affidavit and Submissions, we have also considered the 2nd Respondent’s Replying Affidavit and Submissions and determined as follows;

On prayer 2 of the Application dated 24. 11. 22 11. Under order 9 Rule 9 and 10 of the Civil Procedure Rules, a party to suit is allowed to change Advocates or represent itself in a case after judgement is delivered.

12. The 1st Respondent has properly sought leave to be represented by the firm of E.S Ochieng & Company Advocates. And we have duly noted that no objection is raised by to the said Application for leave.

13. We therefore allow Prayer 2 of the Application and grant leave to the firm of E. S. Ochieng & co. Advocates to come on Record on behalf of the 1st Respondent.

On prayer no. 4 of the Application dated 24. 11. 22 14. This Tribunal entered its Judgment after taking and considering evidence of the parties before it. The Tribunal therefore entered proper judgment based on the evidence before it and a decree ensued. The case is therefore Res judicata and we fail to withstand the basis of the 1st Respondent’s prayer number 4.

15. Prayers no. 4 and 5 of the Application are therefore misplaced as brought and the position of order 22 rule 25 Civil procedure Acts do not apply herein. Prayer 4 and 5 are therefore disallowed.

On prayer 6 of the Application dated 24. 11. 22 16. It is already long established that costs awarded to the successful litigant. In the present case, the 1st Respondent’s Application has failed leave for its request for representation, which is not a substantive prayer. However, the Claimants herein did not file documents in response to the Application while the 2nd Respondent herein did not participate in the main suit and Judgement was entered against it ex-parte. We see no reason to award either the Claimants or the 2nd Respondent costs of this Application and in exercise of our discretion, we order that each party bears its own costs of this Application.

Application dated 29. 11. 22 and 7. 2.23 17. We have considered the said Application and find that they are not to reiterate or reinforce the prayers in the Application dated 24. 11. 22 and seek to address matters of evidence and introducing new evidence in a case which is {{term{refersTo |title Already heard and determined on merits by a competent court and therefore may not be pursued further by the same parties;

a cause of action may not be relitigated once it has been judged on the merits; finality.} res judicata}}. We also find no sufficient cause shown by the 1st Respondent to convince us to set aside the warrants herein. 18. Consequently, the Application dated November 29, 2022 and February 7, 2023 are hereby dismissed with no orders as to costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHOPIYO ADVOCATE FOR THE APPLICANT.CHEPTOO ADVOCATE HOLDING BRIEF FOR MR. JUMA FOR THE RESPONDENT.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023