Muriithi & 2 others v Kugwa (Tribunal Case 95.E197 of 2024) [2025] KECPT 264 (KLR) (Civ) (29 April 2025) (Ruling)
Neutral citation:
[2025] KECPT 264 (KLR)
Republic of Kenya
Tribunal Case 95.E197 of 2024
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members
April 29, 2025
Between
Charity Wanjiru Muriithi
1st Claimant
Jane Wairimu Maina
2nd Claimant
Peter Kamanda
3rd Claimant
and
Anthony Mucheru Kugwa
Respondent
Ruling
Ruling Of The Tribunal
1.Before the Tribunal for determination is a Notice of Motion dated 17.12.2024 filed under a Certificate of Urgency seeking for the following orders.a.Spentb.That this Honourable court be pleased to review the judgment dated 6th August 2024 as the matter be heard a fresh.c.The court be pleased to stay execution of the decree of 7th August 2024 pending the hearing of this application.d.That the costs of this application be provided for.The Respondent/Applicant anchor the Application on the provisions of Section 80 and 3A of the Civil Procedure Act together with order 45 Rule, 1,2,3 [2] and 50 Rule 1 of the Civil Procedure Rules 2010.
2.Prior to this Notice of Motion Application, the Respondent had filed a Statement of Admission of the claim in response to the Claimants’ Statement of Claim dated 12.3.2024.It is on the basis of this admission that the Tribunal entered a judgment in favour of the Claimants against the Respondent for payment of Kshs. 600,000/= plus cost and interest.
3.The Claimants processed the judgment by extracting a Decree dated 7.8.2024 and Warrant of Sale of moveable assets in execution of the Decree dated 5.9.2024.
Issue for Determination
4.We have considered the prayers and the Supporting Affidavit of the Respondent/Applicant in the Notice of Motion Application. Further, we have considered the arguments of the Claimant/Respondent.In the Replying Affidavit to the Respondent arguments. In all, we have framed the following issues for determination:a.Whether there is new evidence to warrant the review of the judgment dated 6.8.2024.b.Whether these are reasonable grounds to stay the execution of the decree.c.Who should bear the cost of this suit.
Analysis
a. Whether there is new evidence to warrant the review of the judgment dated 6.8.2024.
5.In ordinary understanding of new evidence, it can be construed to mean some material facts or subject matter which was not presented in a trial in the first instance because it was not available to the person who was to produce at the time.In our instant suit, the Respondent did not file a Statement of Defence neither did he file any supporting documents to the lack of Defence.
6.Instead the Respondent filed a one-page admission application dated 11.4.2024 and no further engagement or correspondences with the claimants filed before the Tribunal upto the date of filing this Notice of Motion Application.
7.On the issue of not having the loan statement from Hazina Sacco at the time of going to court [emphasis ours] and according to the Respondent his Fosa Loan balance was Kshs. 901,467/= after having paid Kshs. 598,533/= which is 40% of the total loan.Having noted that the Respondent/Applicant did not file a Statement of Defence despite being served by one Joel Maina Mwangi a Court process server on 19.3.2024, we find that the Respondent’s statement of “going to court” is misplaced and misleading.
8.Further, we note that, the Respondent claimed to have annexed a copy of the Loan Statement from Hazina Sacco with the Notice of Motion Application. However, we have perused through all the attachments and do not find a Loan Statement from Hazina Sacco instead what the Respondent calls a Loan Statement is a hand-written internal information from the Sacco to the employer [KRA] detailing the Respondents outstanding loan obligation as at 6.12.2021 as Kshs. 901,467/= plus Kshs. 143,745/= totaling Kshs. 1,045,212/=.
9.The information in the internal correspondence does not show the payment of the loan outstanding and therefore we do not consider this as new evidence.
10.Turning to the main issue of reviewing the judgment dated 6.8.2024, this Tribunal is guided by the provisions of Order 10 Rule 11 which reads as follows:
11.In the instant suit, the Respondent/Applicant did not file a Defence and therefore the Tribunal has nothing to consider in term of material facts or any prospect of success.Under the circumstances, we find that this prayer to review the judgment dated 6.8.2024 must fail.
b. Whether there are reasonable grounds to grant a stay of execution of the decree?
12.Having noted that the Respondent/Applicant failed to file a draft Defence and supporting evidence, the Tribunal is inclined to think that the Respondent/Applicant does not have. A consideration of the statement that he had paid Kshs. 598,533/= as indicated in paragraph 3 of the Respondent’s /Applicant’s Supporting Affidavit is not backed by evidence hence it does not qualify to be new evidence.
13.In total rebuttal to the Respondent’s/Applicant’s statement, the Claimants under paragraph 7 of the Replying Affidavit state:We have examined the payslips of the three [3] Claimants/Respondents that have been filed and noted that, it is factual that each of them was deducted to satisfy the defaulted loan of the Respondent/Applicant.
14.The Respondent has not demonstrated to the Claimants/Applicants how he intends to repay the deducted amounts. For this reason, we do not see any ground to grant a stay of the execution of the decree.We place our reliance on the case Kimani v MC Conmell [1966] E.A where the court held:
15.Given that the tribunal has pronounced itself through the judgment delivered on 6.8.2024 and the fact that Respondent/Applicant has not demonstrated sufficient and persuasive reasons as to be granted a stay, we find that prayer number 3 has no merit and must fail.
16.One can understand the suffering of the claimants who could not enjoy the savings of their sweat because it was attached by the Sacco to meet the obligation of someone who is ill-bend through his actions to delay to repay them.Already the Claimants have suffered enough and do not warrant further suffering.
17.The upshot of the foregoing is that we order as follows:
Ordersa.Prayer 1- Spentb.That this Honourable court be pleased to review the judgment dated 6th August 2024 as the matter be heard a fresh. -has no merit and must fail.c.The court be pleased to stay execution of the decree of 7th August 2024 pending the hearing of this application.- no merit must fail.d.That the costs of this application be provided for.- costs and interest to be borne by the Respondent/Applicant.Application dated 17.12.2024 is therefore dismissed with no orders as to costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025.Hon. B. Kimemia Chairperson Signed 29.4.2025Hon. J. Mwatsama Deputy Chairperson Signed 29.4.2025Hon. Beatrice Sawe Member Signed 29.4.2025Hon. Fridah Lotuiya Member Signed 29.4.2025Hon. Philip Gichuki Member Signed 29.4.2025Hon. Michael Chesikaw Member Signed 29.4.2025Tribunal Clerk JemimahCharity Muriithi 1st Claimant - PresentJane Maina 2nd Claimant – PresentNo appearance for RespondentHon. B. Kimemia Chairperson Signed 29.4.2025