[2021] KECPT 511 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.509 OF 2013

JAMES MWANGI GITHINJI...........................................................1ST CLAIMANT

JAMES MWANGI MBATIA..............................................................2ND CLAIMANT

GIBSON MWAMBI MACHARIA.....................................................3RD CLAIMANT

PETER MACHARIA GICHUNGU...................................................4TH CLAIMANT

VERSUS

PETER KAMAU MWANGI.........................................................1ST RESPONDENT

CHAI SAVINGS & CREDIT SOCIETY LIMITED ...............2ND RESPONDENT

RULING

The 2nd Respondent has moved this Tribunal vide the Application dated 19. 8.2019 seeking for the following Orders:

1. That this suit as filed against the 2nd Respondent be dismissed for want of prosecution;

2. That the costs of the suit and this Application be borne by the Claimants.

The Application is supported by the grounds on its face and the Affidavit sworn by Mwambingu Festus Mwatee on even date (19. 8.2019). The Claimant has opposed the Application vide the Replying Affidavit sworn by the 1st Claimant on 31. 8.2020.

Vide the directions given on 14. 9.2020, the Application was canvassed by way of written submissions. The 2nd Respondent filed its written submissions on 8. 10. 2020 while the 2nd and 4th Claimants filed theirs respectively on 12th and 13th October, 2020.

2nd Respondent’s Contention

Vide the instant Application, the 2nd Respondent contend that a period of over one (1) year has lapsed since the matter was last in court. That the Claimants have failed to prosecute the matter and should therefore be dismissed. That the last time the matter was in court was on 19. 4.2018 when the Claimant’s Application dated 23. 10. 2013 was dismissed for non- attendance.

Claimant’s Case

Vide the Replying Affidavit sworn by the 1st Claimant on 31. 8.2020, the Claimants have opposed the instant Application on the ground that they have not been indolent on prosecuting the claim. That they were never informed by their Advocate on record about the court proceedings of 8. 2.2018 and 19. 4.2018.

That their previous Advocate on record died thus making it difficult for them to obtain the physical file from his office. That their then advocate on record never informed them about the status of their matter and that had he done so, he would have attended court. That the delay in prosecuting the matter is thus entirely to blame on their previous advocate on record. That it is just and fair for them to be granted their day in court.

Issues for determination

We have framed the following issues for determination:

a. Whether the 2nd Respondent has laid a proper basis to warrant the Tribunal to dismiss the claim for want of prosecution.

b. Who should meet the costs of the application

Dismissal of suit for want of prosecution

We derive jurisdiction to dismiss a suit for want of prosecution from Order 17 of the Civil Procedure Rules. Rule (2) thereof provides thus:

“ 2 (1) In any suit in which no Application has been made or step taken by either party, for one year, the court may give Notice in writing to the parties to show cause why the suit should not be dismissed, and if cause is not shown, to its satisfaction, may dismiss the suit.

2 (3) Any party to the suit may apply for its dismissal as provided in sub- rule 1”

As regards the parameters to be considered before dismissing a suit for want of prosecution, we refer to the decision of the court in the case of I Vita – vs- Kyumbu[1984] KLR 44 in the pertinent part, the court (Chesoni J) held thus:

“ The test is whether the delay is prolonged and inexcusable, if it is, can justice be done despite such delay?”

The court restated this position in the case of Mwangi Nedangi S. Kimenyi – vs- A.G & Anotheras follows:

“ 1. When the delay is prolonged and inexcusable, such that it would cause grave injustice to the one side, or the other or both, the court may, in its discretion, dismiss the action straight away. However, it should be understood that prolonged delay alone should not prevent the court from doing justice to the parties- the plaintiff, the defendant and any other third or interested party in the suit, lest justice should be placed too far away from the parties.

2 invariably, what should matter to the court is to serve substantive justice through judicious exercise of discretion which should be guided by the following issues:

1. Whether the delay has been intentional and contumelious;

2. Whether the delay or conduct of the plaintiff amounts to an abuse of the court;

3. Whether the delay is inordinate and inexcusable;

4. Whether the delay is one that gives rise to a substantial risk to fair trial in that it is not possible to have a fair trial of issues in action or causes or likely to cause serious prejudice to the defendant; and

5. What prejudice will the dismissal cause to the plaintiff. By this test, the court is not assisting the indolent but rather it is serving the interest of justice, substantive justice on behalf of all the parties.”

The court in the case of Sky view Properties Limited & Another - vs- Kennedy Amos Njoroge & 3 others [2017] eKLR summarized these tests at paragraph 12 as follows:

“ There are three questions to be answered in this Ruling. The first question is whether the delay is inordinate. The second question is whether the delay is inexcusable. The third question is whether justice can still be achieved if this suit were to be sustained.”

We also stop here and pause the three questions paused by the court in the Sky view Properties Case above. It is clear from the record that from 19. 4.2018, the Claimants have not taken any step to prosecute the matter. The delay is over 2 years. The claim therefore qualifies to be dismissed for want of prosecution in terms of Order 17 Rule 2 of the Civil Procedure Rules.

As regards, the excuse preferred by the Claimants for delay in prosecution of the claim, we find the same to be unconvincing. Whilst the Claimants had instructed a lawyer to act on behalf of them on the matter, they had the residual duty of regularly ascertaining the status of their matter.

Whilst it may be the case that their advocate on record died on 12. 6.2019 (which contention is not backed by evidence) the Claimants have not given justifiable reasons why they did not take steps to move forward their matter. We say so noting that the Claimants never attended court for any session once they filed the claim and their Application dated 23. 10. 2013. Every time the Application came up for hearing, they were absent. This culminated into the dismissal of the same for non- attendance on 19. 4.2018.

Now turning to the issue of whether justice can still be done irrespective of the delay, we have perused the statement of claim and note that the Claimant’s case revolve around monies deducted from them by the 2nd Respondent in a bid to recover a loan of Kshs. 360,000 advance to the 1st Respondent against their guarantorship. They have disputed ever guaranteeing this amount. Their case is that they only guaranteed Kshs.16,000/=. We thus are of the view that it will be in the interests of justice and fairness for the issue of guarantorship to be determined on merits. This will enable the Claimants to know the extent of their exposure to the 2nd Respondent.

Conclusion

The upshot of the foregoing is that we disallow the 2nd Respondent’s Application. We also direct the Claimants to prosecute their claim within six (6) months herein failure to which the claim will stand dismissed without further reference to the Tribunal. The Claimants to bear the costs of the Application assessed at Kshs.10,000/=.

Ruling signed, dated and delivered virtually this 7th day of January, 2021.

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

In the presence of Mr. Kariuki for 2nd and 4th Claimants

Miss. Wangui holding brief for the Saemi 2nd Respondent.

Court clerk Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021