[2024] KECPT 1369 (KLR)

Central Ngandori Farmers Co-operative Society Limited v Kariuki & 3 others (Tribunal Case 736 of 2019) [2024] KECPT 1369 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1369 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 736 of 2019

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 29, 2024

Between

Central Ngandori Farmers Co-operative Society Limited

Claimant

and

Nickson Kariuki

1st Respondent

James John Njeru

2nd Respondent

Jackson Njeru Nyorotha

3rd Respondent

Peter Njue

4th Respondent

Ruling

1. This ruling dispenses with the notice of Motion Application is dated 13th July 2023 and supported by an affidavit sworn by EDDIE NJIRU, the Applicants advocate and brought under Order 9 Rule 9, Order 22 rule 22, Ordr12 Rule 7 of the Civil Procedure Rules, Section A and 1B of the Civil Procedure Act Cap 21, Laws of Kenya. The Application seeks the following orders:a.That this Application be certified as urgent and be heard exparte in the in the first instance.b.That the Applicant be granted leave to effect change of advocates from Ms. Rose Njeru & company advocates to Eddie Njiru &company advocates.c.That pending the hearing and determination of this application interparte, a stay of execution of the judgment 9th June 2022, the Decree and Certificate of costs dated 14th February, 2023 and all consequential orders be granted.d.That the said judgment, decree and the consequential orders be stayed and set aside pending the hearing of the suit interparte and on full merits.e.Such other/further orders as deemed fit and just to grant.f.That the cost of this application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: the suit proceeded ex-parte in the absence of the Applicant. The Applicant filed a Statement of Defence, but was not informed by his advocate on record when the matter would be heard, and the matter proceeded in his absence. The advocate contends that even if he had been informed of the hearing date, it would not have been possible for the Applicant to attend since he was attending hospital for dementia.

3. The brief background of this matter is that the claimant filed a Statement of Claim dated 25th November 2019 in which it sought to recover Kshs. 2,570,000/- from the Respondent. This amount arose from a surcharge order from the commissioner against the Respondents. The matter came up for hearing on 9th June 2022 when the Claimant was present but the Respondents did not appear, despite being an affidavit of service on record. A judgment was entered in favour of the Claimant against the 1st, 2nd, and 3rd Respondents on 9th June 2022. This Application is an Application to stay this judgment.

4. The Claimant filed a Replying Affidavit dated 14th August 2023 through its elected chairman. According to the Claimant, the Applicant's firm of advocates on record was served with a hearing notice, and the service was acknowledged. The Claimant brought to the attention of this court that the hospital note is dated 29th June 2023 while the hearing happened more than one year before, and there is no evidence that the Applicant was in the hospital during the hearing of the matter. The Claimant also noted that the Application for stay has been brought more than one year after the hearing and that the Application is a tactic employed by the Applicant to deny the Claimant from enjoying the fruits of the judgment.

5. In their submissions, the Claimants reiterated their Replying Affidavit and submitted that this Application is frivolous, vexatious, and an abuse of the court process. The Claimant relied on the case of Wachira Karan vs Bildad Wachira (2016) eKLR where the court pronounced itself on what ought to be a sufficient cause.

Analysis 6. This Tribunal has noted the Application, the response, and the submissions with regard to this Application. It is not in dispute that judgment was entered in favour of the Claimant as against the Respondents. The question that this Tribunal asks itself is whether the Applicant is entitled to the reliefs sought, to wit setting aside the judgment of this court dated 9th June 2022.

7. The Applicant claims that his advocate on record did not inform him of the hearing date, and neither did his advocate appear during the hearing. There is no dispute that the hearing notice was served upon the Applicant’s advocate. The Applicant is praying to this court not to visit the opinions of his advocate upon him, and set aside the judgement.

8. I the case of Peter Kipyegon Kirui V. Agricultural Development Co-operation & 2 Others (2007) eKLR the court had the following to say:-“……..I say so because even if an advocate had erred due to laxity, negligence or sheer laxity, the court would not be giving an indulgence to such an advocate, if it should decide not to visit such a mistake on the client. In my considered view, there cannot be an absolute bar to the court exercising its discretion favourably simply because the advocate acting for a party had been lax, negligent or careless when he made a mistake.”This is a very old matter of 2021. The matter was to be heard on 9th March 2022, the advocate for the applicant was in court and the Applicant was to appear to testify. However, the Applicant's advocate later informed the court that her client had fallen sick, and could not attend court. They were given a final adjournment and the next hearing was taken in court in the presence of the Applicants advocate. They were later served with a hearing notice by the Claimants. We find that this was not only the negligence of the Applicant's advocate, but also the Applicant as well. It was the Applicant’s duty to inquire from his advocate what transpired in court when he failed to appear because of poor health. The Applicant also made the Application to set aside more than one year after the judgment was delivered. We are reluctant to set aside the judgment because we feel that the Applicant has not shown sufficient cause why he did not appear for the hearing.

9. In the upshot of the foregoing, we make the following orders;a.The Applicant’s notice of motion Application dated 13th July 2023 lacks merit and is hereby dismissed with costs.b.Judgment delivered on 9. 6.2022 is upheld.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHNo appearance by parties.Ruling delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024