Ochieng v Commissioner of Cooperative Development (Tribunal Appeal E006 of 2024) [2025] KECPT 294 (KLR) (Civ) (29 May 2025) (Ruling)
Neutral citation:
[2025] KECPT 294 (KLR)
Republic of Kenya
Tribunal Appeal E006 of 2024
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & PO Aol, Members
May 29, 2025
Between
Kelvin Ochieng
Appellant
and
The Commissioner of Cooperative Development
Respondent
Ruling
1.This ruling dispenses with the Respondent’s Notice of Motion Application dated 11th June 2024 supported by an affidavit sworn by the Applicant, KELVIN OCHIENG, and brought under Order 50 Rule 4 of the Civil Procedure Rules, Rule 11 of the Co-operative Tribunal (Practice Procedure) Rules). The application seeks the following orders:1.Spent2.That the Honorable Tribunal be pleased and hereby grants leave for the Applicant-intended Appellant to file his Appeal out of time.3.Spent4.That pending the hearing and determination of this application this Honourable Tribunal be pleased and hereby grants stay of proceedings in the Tribunal case no. E338 of 2024- Besco Cooperative society limited versus kelvin Ochieng.5.That the Applicant’s Memorandum of Appeal dated 11th June 2024 be and is hereby deemed to have been properly filed and on record.6.That the applicant be and is hereby granted leave to file his Record of Appeal within 21 days.7.That costs for this application be in the cause.
2.The application is premised on the grounds on its face which are inter alia that: an inquiry report was made by the inquiry officer subject to an Inquiry Order dated 3rd June 2023. That the Respondent allegedly issued a notice to show cause to the applicant, which the applicant claims he never received. That a surcharge order was issued which the applicant claims was not served on him. Further that a matter has been filed in this court to enforce the surcharge order Tribunal Case No. E338 of 2024; Besco Cooperative Society Ltd v Kelvin Ochieng.
3.The Respondents filed a replying affidavit to the application. In their response, the Respondents aver that the application has been brought under the wrong provision of the law. They further state that they issued a notice for the applicant to attend the meetings and that if the Applicant did not attend, he chose not to.
4.The application was canvassed via written submissions, and the Applicant filed their submissions.
Analysis
5.The question before this Tribunal is whether the Applicant should be allowed to file an appeal out of time.
6.The Applicant has told this court that he was not aware of the surcharge orders, and that he has filed this application within a week of knowing the summons and surcharge order via pleadings.
7.The considerations on whether to grant or not grant leave to appeal out of time is an exercise in discretion by courts and the Court of Appeal in Thuita Mwangi versus Kenya Airways Limited [2003] eKLR laid down what to consider, which include:i.The period of delayii.The reason for the delayiii.The arguability of the Appeal.iv.The degree of prejudice which could be suffered by the Respondent if the extension is granted
8.The Application herein was filed on 11th June 2024. The Applicant has filed the summons that were served upon him in the Tribunal Case No. E338 of 2024. On the face of it, it is not clear when the summons were served upon the Applicant but they were issued on 17th May 2024 by the Tribunal. The surcharge orders are dated 11th December 2023. The question on whether the Applicant received notice of the surcharge is to be determined in the application. It is the Applicant’s assertion that they did not receive notice of the surcharge. The 6-months delay is unreasonable, but not receiving the notice can be a reasonable cause for the delay, and we are inclined to give the Applicant the benefit of doubt pending the determination of this application.
9.The next issue to consider is the arguability of the appeal. it has been constantly held that an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court. The basis for the appeal on this matter is that the surcharge process did not follow due process. We feel that this is an arguable issue. One that the court ought to subject it to further interrogation.
10.Finally on the question of prejudice, this court would consider what would happen to the Respondents if we allow the Applicant to file the appeal out of time. If the appeal is filed and the Applicants do not succeed, the Respondents will not suffer but the Cooperative Society will suffer the opportunity costs of using their money that is held up with the Applicant. We find that since the amount is liquidated, any damage suffered can always be compensated through the award of damages.
11.On the question of stay of proceedings pending appeal, we will consider the case of Kenya Wildlife Service v James Mutembei [2019] eKLR, Gikonyo J held that:Further in the case of Global Tours & Travels Limited; Nairobi HC Winding up Cause No. 43 of 2000 Ringera J, (as he then was) stated that: -
12.From the above decisions, it can be seen that the court is reluctant to order stay of proceedings in the interest of justice. Stay can only be given when the court has done a balance of pros and cons of the stay. In this case, refusing to grant stay of proceedings in Tribunal Case No. E338 of 2024 will render the intended appeal nugatory since it is the cause enforcing whatever the Applicant intends to appeal from. Staying the proceedings will deny the Claimants their rights of litigation, and delay the receipt of the money claimed, should the claim succeed. To reach a just conclusion, the Tribunal has to balance the interests of the parties in the matter.
13.Following from above, we find merit in the Application dated 13th March 2023 and order as followsa.Applicant is hereby granted leave to file his appeal out of timeb.Proceedings in the Tribunal Case No. E338 of 2024 is hereby stayed pending the hearing and determination of the appeal herein SUBJECT to payment of a security of Ksh. 603,305/- by the applicant to this courtc.The Applicant‘s Memorandum of Appeal dated 11th June 2024 be and is hereby deemed to be properly filed and on record, subject to the payment of the requisite feesd.The Applicant be and is hereby granted leave to file his record of Appeal within 21 days from the date of this ruling.e.The Cost of this application be in the cause.f.Mention to confirm compliance on 23.10.2025. Notice to issue.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025.HON. B. KIMEMIA CHAIRPERSON SIGNED 29.5.2025Hon. J. Mwatsama Deputy Chairperson Signed 29.5.2025Hon. Beatrice Sawe Member Signed 29.5.2025Hon. Fridah Lotuiya Member Signed 29.5.2025Hon. Philip Gichuki Member Signed 29.5.2025Hon. P. Aol Member Signed 29.5.2025Tribunal Clerk MutaiRuling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 29.5.2025