[2021] KECPT 522 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.160 OF 2015

ALEXANDER NDERITU.................................................1ST CLAIMANT

HUSSEIN ADAMS.............................................................2ND CLAIMANT

PETER ODHIAMBO.........................................................3RD CLAIMANT

BENSON KIGADA..............................................................4TH CLAIMANT

ELIUD KWAMBATA..........................................................5TH CLAIMANT

FRANCIS MAJANGA.........................................................6TH CLAIMANT

CHARLES NANGENDO.....................................................7TH CLAIMANT

HANNAH KIBE....................................................................8TH CLAIMANT

RODGERS WANYONYI......................................................9TH CLAIMANT

JASON MZUGA...................................................................10TH CLAIMANT

VERSUS

ONESMUS MAWEU.................................................................RESPONDENT

AND

EGERTON UNIVERSITY SACCO SOCIETY LIMITED.....3RD PARTY

RULING

Before us for consideration and determination are two Applications: the Claimant’s Application dated 22. 10. 2019 and the Respondent’s Application dated 19. 9.2020. Since the Respondent’s Application dated 19. 9.2020 has been triggered by the Claimant’s Application dated 22. 10. 2019, we will consider Application and determine it first.

Respondent’s Application dated 19. 9.2020

This Application seeks for Orders inter alia:

1. That this Tribunal be pleased to issue an Order directing Safaricom Limited to avail phone call data for mobile phone No. 0728580961 showing its location 2. 10. 2019;

2. That the 7th Claimant be availed for purposes of cross examination on his averments contained in his supporting Affidavit sworn on 22. 10. 2019.

The Application is supported by the grounds on its face and the Affidavit sworn by the Respondent on 15. 9.2020. The Claimants have opposed the Application vide the grounds of opposition dated 27. 10. 2020.

Respondent’s Contention

Vide the instant Application, the Respondents contend that the 7th Claimant has sworn an Affidavit on 22. 10. 19 giving false and misleading information that he was in Njoro in the morning of 2. 10. 2019 and only arrested at Nairobi at 2p.m. That in Order for the Tribunal to ascertain the exact location of the 7 Claimant on that day, phone call dates is the only means to do so.

Claimant’s Contention

The Claimants have opposed the Application on grounds that the same is not anchored in any provisions of the law and that the Tribunal lacks the requisite jurisdiction to grant the prayers sought. That the Application is meant to ....... the hearing of the Claimant’s Application dated 22. 10. 2020.

From the foregoing, the question we pause is whether we have jurisdiction to grant the Orders sought in lieu of the provisions of Article 31 of the Constitution. The Article touches on the Right to Privacy and it provides thus:

“ Every person has the right to privacy, which includes the right not to have-

a. Their person, house or property searched;

b. The possession seized;

c. Information relating to their family or private affairs unnecessary required or revealed;

d. The privacy of their communication infringed.

The Irish Supreme Court underscored the need to protect the privacy of a person in the case of Kennedy - vs- Ireland [1987] I.R.587 in the following terms:

“ The dignity and freedom of an individual in a democratic society cannot be ensured if his communication of private nature, be they written or telephone, are deliberately, consciously and unjustifiable intruder upon and interfered with.”

A telephone number or line is private property which contains private information only unique to the user of the line. At every given time or period, telephone service provides are the custodians of this private information as they are the medium in which they are relayed. They are thus in a position of confidence and that they can only allow the legitimate user of the respective lines to access such information. Unless for security reasons or by dint of a court Order, the said information should not be divulged or shared. Even with court Orders, courts cannot issue Orders for third parties to access such information without proper cause being shown by such third parties. In the present case, the Respondents want us to compel Safaricom limited to share information regarding the whereabouts of the 7th Claimant on 22. 10. 2019. We find that whilst the said service provider may be in a position to do so, the said Order may end up trampling the 7th Claimant’s right to privacy as the information contained with line is not only limited to his whereabouts.

Further, we find that since the Respondent’s borne of contention is the 7th Claimant’s whereabouts on 2. 10. 2019 and having appreciated the circumstances of the court proceedings on that day and the Claimant’s Application dated 22. 10. 19, we find that access of the 7th Claimant’s call or log details is not the only way of ascertaining his whereabouts on 2. 10. 2019. The 7th Respondents have the right (which they have done) to cross examine the 7th Respondent on the contents of the said Affidavit.

We thus decline the invitation to grant prayer 1 of the said Application.

As regards, the prayer for cross examination of the 7th Claimant regarding the contents of this supporting Affidavit sworn on 22. 10. 2019, we have looked at the prayers sought in the Claimant’s Application dated 22. 10. 2019 and find that it will not be in the interests of judicial time to take the route suggested by the Respondents. We say so noting that in any event, the Respondents will not suffer any prejudice if the Claimant’s Application dated 22. 10. 2019 succeeds.

Conclusion

The upshot of the foregoing is that we do not find merit in the Respondent’s Application dated 19. 9.2019 and dismiss it with costs in the cause.

Claimant’s Application dated 22. 10. 2020

This Application was filed on 22. 10. 2019. It seeks for Orders inter alia:

a. That the Tribunal varies, rescinds vacates or reviews its Orders issued on 2. 10. 2019 and reinstate the claim herein;

b. Costs to be provided.

The Application is supported by the grounds on its face and the Affidavit sworn by the 7th Claimant on even dates. The Respondent has opposed the Application vide the Replying Affidavit sworn by himself on 24. 1.2020.

Claimant’s Contention

Vide the instant Application the Claimants seek for the instant claim to be reinstated on grounds that the claim was dismissed on 2. 10. 2019 for non- attendance yet they were not aware that the matter was coming up in court on that day. That they were not served with the Respondent’s Application dated 12. 7.2019. That they only became aware of the proceedings of 2. 10. 2019 through a telecommunication from the CEO of the 3rd party when they got to know that the matter was coming up in court on that day.

That the Claimant’s case and the main claim revolve around their guarantorship to the Respondent in the loan he had taken from the 3rd party. That upon being granted the loan the Respondent defaulted in repaying the same thus prompting the 3rd party to recover from them.

Issues for determination

The Claimant’s Application dated 22. 10. 2019 has presented the following issues for determination:

a. Whether the claim herein should be reinstated;

b. Who should meet the cost for the Application ?

Reinstatement of suit

On 2. 10. 2019, this Tribunal allowed the Respondent’s Application dated 12. 7.2019. The said Application sought for the dismissal of the claim for want of prosecution. It was brought under Order 17 Rule 2 of the Civil Procedure Rules 6 1 (1) of the Co-operative Tribunal (Practice & Procedure Rules) 2009.

For the reasons underscored above the Claimants want the claim to be reinstated.

It is a discretion of the court ( and Tribunal) for this matter to set aside an order made exparte. This was the holding of the court in the case of Jim Rodgers Gitonga Njeru- vs- Al Husanain Motors Limited & 2 others. [2018] eKLR.In the pertinent part, the court held thus:

“ It is within the general discretion of the court to set aside an Order issued by it ex-parte. So long as sufficient cause has been shown for the exercise of such discretion.”

The court further elaborated on this issue in the case of CMC Holdings Limited –vs- Nzioki [2004]I KLR 173 as follows:-

“ In law, the discretion that a court of law has, in deciding whether or not to set aside exparte Order........ was meant to ensure that a litigant does not suffer injustice or hardship as a result of among other things, an excusable mistake or error..”

Whilst considering the facts of this Application in lieu of the fact that our jurisdiction in discretional, we are also minded of the provisions of Order 12 Rule 7 of the Civil Procedure Rules, it provides this :

“ Where under this Order judgment has been entered or this suit has been dismissed, the court, on Application, may set aside or vary the judgment or Order upon such terms as merely just...”

Further, we refer to the Provisions of Section 3A of the Civil Procedure Act (cap 21) Laws of Kenya which provides thus:

“ Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such Orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

The court in the case of Peter Kiplagat Rono- vs- Family Bank Limited [2018] eKLRupheld this position in the following terms:

“ The court has discretion to set aside a judgment or Order. The exercise of this discretion is intended to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error...”

With these legal principles in the fore, the question arises as to whether the Claimants have made out a case for reinstating of this claim. It is the Claimant’s case that the Respondent did not serve them with the Application which precipitated the dismissal of the claim for want of prosecution. The Application is dated 12. 9.2019 on its part, the Respondents aver that the Claimants were indeed served but elected not to defend the Application or appear in court when it came on 2. 10. 2019.

We have perused the Affidavit of service sworn by Francis Wambua on 30. 9.2019. At paragraph 3 thereof, the process server depones as follows as regards service of the Application dated 12. 9.2019 upon the Claimants:

“That on 25. 9.2019, I proceeded to Egerton University where the Claimants/Respondents worked and the office of the Administrator where I introduced myself to the secretary and the purpose of my visit where he checked contacts of the 1st Claimant from their system, then called and told him about the documents where after the conversations, told me that she had been told to re.....and they (Claimants/Respondents) would collect them from her but he did not sign...”

Clearly, it is apparent that the process server did not effect personal service of the Application (dated 12. 9.2019) on the Claimants. There was no way therefore that the Claimants would have known about the proceedings of 2. 10. 2019.

Conclusion

With the foregoing in mind, we find merit in the Claimant’s Application dated 22. 10. 2019 and determine it as follows:

1. The proceedings of 2. 10. 2019 are hereby vacated and the claim and the Respondent’s Application dated 12. 9.2019 are hereby reinstated;

2. The Respondent’s Application dated 12. 9.2019 to be determined as follows:

a. The Claimants to file and serve their respective Responses within 14 days herein;

b. The Respondents to file and serve a further Affidavit (if need be) alongside written submissions within 14 days of service;

c. The Claimants to file and serve their written submissions within 14 days of service.

d. Mention to confirm compliance and fixing a Ruling date on 3. 3.2021; and

e. Costs of this Application to be in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JANUARY, 2021.

Hon. F. Terer Deputy Chairman ................................

Mr. P. Gichuki Member .................................

Mr. B. Akusala Member ..................................

In the absence of the parties

Court clerk Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021