REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 244 OF 2019

JOHN ALEXANDER & OTHERS.........................................CLAIMANTS

VERSUS

LIVINGSTONE SHIKUKU & OTHERS.........................RESPONDENTS

RULING

What is before us for consideration and determination is the 5^th Respondent‘s Application dated 26.6.2019. It seeks, in the main, the following orders;

1. That the statement of claim dated 14.2.2019 be struck out; and

2. Costs.

The Application is supported by the grounds on its face and the affidavit sworn by the 5^th Respondent on even date that is 26.6.2019.

It is the 5^th Respondent’s case that the statement of Claim and its verifying Affidavit are incurably defective and should be struck off.

The Claimants have opposed the Application vide the Replying Affidavit sworn by the 1^st claimant on 31.8.2019.

Vide the said Affidavit, the 1^st Claimant contends that as at the time the instant Application was filed, the 5^th Respondent had not entered appearance nor filed a Statement of Defence as provided for under Rule 10 (2) of the Co-operative Tribunal (Practice and Procedure) Rules and thus does not have audience before the Tribunal.

That as regards to the substance of the Application, he contends that he swore a Verifying Affidavit dated 14.2.2019 which had typing errors on the names of the parties. That he had a written authority of the 2^nd Claimant but his advocates inadvertently omitted to file the authority alongside the claim. That by dint of Rule 4 of the Co-operative Tribunal (Practice and Procedure Rules) the Tribunal has powers and discretion to decide matters with due speed and dispatch without undue regard to technicalities of procedure.

That further, article 159 (2) (d) of the Constitution requires justice to be administered without undue regard to procedural technicalities.

That further, the pleadings had not closed at the time the Application was filed so as to disallow anticipated amendments.

That further, striking out of pleadings is as draconian exercise which should only be exercised as a last option.

That the 5^th Respondent will not suffer any prejudice if the Claimants are allowed to amend pleadings.

Written Submissions

Vide the directions given on 24.1.2020, the Application was disposed of by way of written submissions. The 5^th Respondent filed his on 10.2.2020 while the Claimants did so on 25.2.2020.

5^th Respondent’s Written Submissions

Vide the submissions, the 5^th Respondent contend that the Verifying Affidavit is averred by John Alexander but sworn by George Wamwea Kinogu at the Jurat. That the Statement of Claim, though accompanied by a defective Verifying Affidavit lacked authority, of George Wamwea Kinogu for the 1^st Claimant to swear the Verifying Affidavit.

Claimant’s Written Submissions

Vide their written submissions, the Claimants reiterated the averments in the Replying Affidavit sworn by the 1^st Claimant on 31.8.2019.

Issues For Determination

The instant Application has presented the following issues for determination:-

(a) Whether the statement of claim dated 14.2. 2019 should be struck out for being incurably defective ; and

(b) Who should meet the costs of the suit.

Striking Out Of Pleadings

Order 2 Rule 15 of the civil Procedure Rules provides for the striking out of pleadings. It provides thus:-

“At any stage of the proceedings, the court may order to be struck out or amended any pleadings on the grounds that.

(a) It discloses, no reasonable cause of action or defence in law; or

(b) It is scandalous, frivolous or vexations; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) Is otherwise an abuse of the process of the court. “

The court in the case of County Council of Nandi versus Ezekiel Kibet Rutto & 6 others (2013) eKLR defined  the meaning of a frivolous, vexations and a pleading that is an abuse of the process of the court as follows;

“.....a frivolous pleading in my view is the pleading that completely lacks a legal foundation. It is a pleading that discloses no cause of action and serves no purpose at all.”

A vexatious pleading....is

(a) Pleading whose only purpose is to annoy or irritate the other party to the suit.

(b) A pleading that is an abuse of the process of the court encompasses a scandalous, frivolous or vexatious pleading but goes further to take care of situations where a litigant is using the process of the court in the wrong way, not for purposes of agitating a right, but for other extraneous reasons.”

The question arises as to whether the 5^th Respondent has, vide, the instant Application met the above conditions. It is the 5^th Respondent’s case that the claim is incurably defective as the Affidavit verifying the same it has been averred by the 1^st claimant but sworn at the jurat by the 2^nd Claimant.

Further the 5^th Respondent has faulted the claim on the ground that though it is accompanied by a defective Verifying Affidavit, the same lacked authority of George Wamwea Kinogu.

On their part, the 1^st and 2^nd Claimants acknowledged the existence of  typographical error in the Verifying Affidavit  and regretted the same. They further, went ahead to aver that since the pleadings had not closed by the time the instant Application was filed, they have gone ahead to amend the claim to correct the anomaly. The said amended claim has been annexed to paragraph II of the Replying Affidavit sworn by the 1^st claimant on 31.8.2019.

Further, the Claimants contend that the 5^th Respondent does not have audience in the Application as at the time the Application was filed, he had not entered appearance.

In order to respond to the above question in light of the foregoing facts, we wish to draw the attention of the parties to the provisions of Rule 4 of the Co-operative society (Practice and Procedure Rules). It  titled, “Disregard of technicalities” it provides as follows:

“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedures “

Further, we wish to draw the attention of the parties to the provisions of order 2 Rule 13 of the Civil Procedure Rules which provides thus “-

“The pleadings in a suit shall be closed fourteen days after service of Reply or defence to counterclaim, or, if neither is served , fourteen days after service of the defence, notwithstanding that any order or request for particulars has been made but not complied with.”

Based on the foregoing, we determine the Application on two limbs as follows:-

Firstly, on the issue of defectiveness or otherwise of the Verifying Affidavit, we find that the objection raised by  the 5^th Respondent is a technical one that does not go to the root of the claim. The objection is one of form rather than substances. It flies in the face of Rule 4 of the Co-operative Society (Practice and Procedure) Rules and article 159 (2) (d) of the Constitution.

Secondly, even if the objection were to succeed, the same has been cured by the amendment to the Statement of Claim. The claimant filed an amended claim on 5.2.2020.We have perused the record and note that as at the time the 5^th Respondent filed the instant Application pleadings had not closed. Thus the amended statement of claim is properly on record.

Conclusion

Based on the foregoing, we do not find merit on the 5^th Respondent’s Application dated 26.6.2019 and hereby dismiss it with costs to the Claimants.

Ruling read, dated and delivered pursuant to the directions given by the Hon. The Chief Justice on 15.3.2020, this 9^th day of April, 2020.

Prepared by Hon. B.Kimemia Chairman, Hon. F. Terer Deputy Chairman, P. Gichuki Member.

With consent of the parties, the final orders to be delivered by email, as accordance to the prevailing measures during the covid-19.

Hon. B. Kimemia Chairman  Signed 9.4.2020

Hon. F. Terer Deputy Chairman Signed 9.4.2020

P. Gichuki  Member  Signed 9.4.2020