Wilfred v Karanja (Chairman) & 3 others [2023] KECPT 415 (KLR)

Wilfred v Karanja (Chairman) & 3 others (Tribunal Case 242 of 2013) [2023] KECPT 415 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 415 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 242 of 2013

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

April 27, 2023

Between

Peter Muasya Wilfred

Claimant

and

Frederick Kamande Karanja (Chairman)

1st Respondent

Francis Kimani (Secretary)

2nd Respondent

Peter Muthike (Treasurer)

3rd Respondent

Muka Mukuu Farmers Co-operative Society Limited

4th Respondent

Ruling

1. This Ruling dispenses with the 4th Respondent’s Notice of Motion dated May 31, 2022, and filed on June 7, 2022.

2. By its Notice of Motion, the 4th Respondent seeks the following orders:a.That this application be certified urgent and heard ex-parte in the first instance.b.That the Honourable Tribunal be pleased to review and set aside its directions issued on the 18th of May, 2022. c.That the Honourable Tribunal be pleased to allow the 4th Respondent/Applicant substitute their witness one George Musembi Mutiso who was the former chairperson of the 4th Respondent/Applicant with one Peter Ngui Mulili who the current Vice Chairperson.d.That the Honourable Tribunal be pleased to allow the 4th Respondent/applicant defend this case by calling its witness and adducing evidence.e.That the costs of this application be in the cause.

3. The Motion is supported by an Affidavit sworn by Samwel Ayieko, the advocate for the 4th Respondent.

4. Grounds on the face of the application are that the original witness who was slated to testify in support of the 4th Respondent’s case is unwilling, hesitant and/or unavailable to testify since he ceased being the Chairman of the 4th Respondent.

5. In their submissions, the Applicants submit that the matter came for hearing on 18th May 2022. When the time came for the 4th Respondent to present their case, they sought to substitute their former Chairperson George Musembi Mutiso with Peter Ngui Mulili, their current Vice Chairperson, who was present in court. The Applicants submit that closing this case without them calling its witnesses is a breach of Applicant’s Constitutional Right to fair hearing.

6. The Claimant filed a Replying Affidavit on August 29, 2022 dated August 28, 2022 in which he opposed the Applicant’s application herein. It is the Claimant’s submission that the Applicant had all the time to substitute the Witness Statement but he did not. According to the Respondent, Peter Ngui Mulili has been with the Sacco since 2013.

7. The Tribunal has considered the Applicant’s submissions together with the Claimant’s Replying Affidavit to this application. The Tribunal agrees that the right to a fair hearing. And so, what then are the norms or components of a fair hearing? The Supreme Court of India, in Indru Ramchand Bharvani & others v Union of India & others, 1988 SCR Supl (1) 544, 555 found that a fair hearing has two justiciable elements:(i)An opportunity of hearing must be given; and(ii)That opportunity must be reasonable (Cited by the Supreme Court of Kenya in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport and Infrastructure & 3 others[2021] eKLR).In answering the above questions, the Tribunal notes that this case is a very old case that was filed in 2013. It is not disputed that the witness the Applicant seeks to bring on board has been in the employment of the Applicant for a long time and has always attended court for the 4th Respondent’s matters. However, the 4th Respondent waited until his matter was called up for hearing that he sought to orally substitute the witness.

8. The Tribunal, therefore, finds that the 4th Respondent had a reasonable opportunity to apply for the substitution of his witness and filing of the Amended Witness Statement all along but did not take it.

9. In the upshot, the Applicant’s application dated May 31, 2022, and filed on June 7, 2022 is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023TRIBUNAL CLERK JEMIMAH/JONAH