Rose Aluoch Oduka & 3 others v Martin Mwangi Muchoki [2022] eKLR

Rose Aluoch Oduka & 3 others v Martin Mwangi Muchoki [2022] eKLR

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 256 OF 2020

ROSE ALUOCH ODUKA.......................................1ST CLAIMANT/RESPONDENT

JANE NJERI NGUMBA.........................................2ND CLAIMANT/RESPONDENT

WINNIE WANJIKU NGIGI...................................3RD CLAIMANT/RESPONDENT

JOHN KIPLIMO TARUS.......................................4TH CLAIMANT/RESPONDENT

-VERSUS-

MARTIN MWANGI MUCHOKI.................................RESPONDENT/APPLICANT

RULING

1.  The Applicant has filed a Notice of Motion Application under Certificate of Urgency, dated 11th June, 2021. In the said Application, the Applicant is seeking various orders, most significant thereof being a prayer for Stay of Execution of the Tribunal’s Ruling delivered on 27th May 2021, in order for the said Applicant to pay the decretal sum in instalments of Kshs. 30,000/= each.

2.  The Application was opposed by the Respondents, via a Replying Affidavit dated 12th July 2021 deponed by Jane Njeri Ngumba, and on behalf of the other Respondents. Parties were directed to proceed by way of written Submissions, which directions were complied with.

3.  We have read and considered the Pleadings and submissions of all parties, which have assisted this Tribunal to come to the determination of these present issues.

4.  ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties, we have framed the following issue for determination:

(a) Whether the Tribunal ought to stay its decision on account of payment by instalments by the Applicant

5.  ANALYSIS OF THE ISSUES

(a) Whether this Tribunal should Stay its Decision

The Applicant has invoked the provisions of Order 21 Rule 12(2) of the Civil Procedure Rules, which provides as follows:

“After passing of any such judgment or decree, the court may on the application of the judgment-debtor and with the consent of the decree-holder or without the consent of the decree-holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor or the taking of security from him, or otherwise, as it thinks fit.”

6.  In this instant Application, the Applicant has sought to pay a monthly instalment of Kshs. 30,000/= towards settlement of the decretal sum, which is in the excess of Kshs. 600,000/=. No Affidavit of Means has been filed to explain why the decretal sum cannot be paid in its entirety.

7.  This Tribunal is permitted to exercise discretion in view of the proposal. In our considered view, the proposal is unreasonable. It is insufficient, and only premeditated to embarrass the course of justice. The proposal, in fine, cannot encourage this Tribunal to tamper with execution by granting stay thereof. The Application for stay is a camouflage, suspiciously manufactured to deny the Decree Holders the fruits of their Judgment.

8.  We thus conclude that the Applicant’s Application in the present case smacks of bad faith, it is unreasonable, and more so, no basis has been laid to the satisfaction of this Tribunal to warrant the extension of stay orders. We hold that litigation has come to an end, and the Decree Holders must be permitted to enjoy the fruits of their judgment,

9.  We find that the Orders sought should not be granted and the Application dated 11th June, 2021 must fail. The Applicant has not satisfied this Tribunal that the orders sought should be granted under Order 21 Rule 12 of the Civil Procedure Rules, due to the miniature proposal.

ORDERS

We therefore Order as follows:

(a) The Applicant’s Application dated 11th June, 2021 be and is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.

Hon. B. Kimemia            Chairperson                   Signed        7.10.2021

Hon. J. Mwatsama         Deputy Chairperson      Signed        7.10.2021

Mr. P. Gichuki                Member                         Signed        7.10.2021

Mr. B. Akusala               Member                         Signed        7.10.2021

Tribunal Clerk               R. Leweri

Ms Mokaya  for the Respondent

Jane  Ngumba for 2nd Claimant

Mokaya- We seek  for stay.

Court- 10 days  stay granted.

Hon. J. Mwatsama         Deputy Chairperson      Signed        7.10.2021

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