[2021] KECPT 237 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO. 47 OF 2020

JOHN MARINGA.........................................................................CLAIMANT

-VERSUS-

HARAMBEE SACCO LTD....................................................RESPONDENT

RULING

1. The Respondent’s Notice of Preliminary Objection has been brought under Order 5 Rule 1(6) of the Civil Procedure Rules 2010, which provides as follows:

“Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.”

The Claim was filed on 10th February 2020, together with an Application under Certificate of Urgency. In the intervening period, the Application was in progress. The Respondent alleges that while no Summons to Enter Appearance were served upon the Respondent, the said Respondents did appear on 26th September 2020 to oppose the aforesaid Application, which was dismissed. The Claimants appealed against the dismissal, and on 5th November 2020, the High Court allowed the Claimant’s Appeal.

The Respondents now seek Orders to strike out the entire Claim, on the grounds that the Summons to Enter Appearance were not collected within the statutorily provided 30 days. The Respondents have cited various compelling authorities, which we have carefully considered.

On the Claimant’s part, he admits that the Summons to Enter Appearance were inadvertently excluded from the filed Pleadings, and faults the former advocates for this indiscretion. The Claimant further contends that the Respondent participated in the proceedings in the Application up to appeal. Further, the Claimant has invited this Tribunal to extend time for corrective measures to be taken to save the Claim, and cited authorities to persuade the Tribunal to breathe life into a claim that the Respondents contend is lifeless and set for burial.

We have perused the record, scrupulously, and hereby issue our Ruling on the Preliminary Objection dated 4th June 2021.

ISSUES FOR DETERMINATION

2. Having carefully considered the documents and arguments by both parties in their Written Submissions, and on both parties agreeing that there is a violation of Order 5 Rule 1(6), we have framed only one issue for determination:

a. Whether the suit should be struck out on the grounds of abatement;

3. We have read and considered the robust Submissions of the parties and their respective authorities, and the same are well thought and elaborate, with strong legal arguments. We may not quote all the decisions in this Ruling, but that in no way does not mean that we did not consider the said Submissions.

ANALYSIS OF ISSUES

We now proceed to dissect the issues as follows:

(a) Whether the suit should be struck out on the grounds of abatement

Order 5 Rule 1(6) is coached in mandatory terms. The right to a fair trial is one whose core cannot be derogated, under Article 25(c) of the Constitution of Kenya 2010. This right’s full enjoyment embodies the principle of natural justice, audi alteriam partem. Each party must be afforded the right to be heard, and defend their position in all proceedings.

The need to extract summons to enter appearance and their service to Defendants cannot be underscored. Courts have held that the abatement of a suit under Order 5 Rule 1(6) is self-executing, and it happens innately [vide: Peter Owuor Otula -vs- Ecobank Kenya Limited & 3 Others [2014] eKLR]. It is thus stringent, in order to prevent parties from filing suits and excluding the defendant therefrom with a view of stealing a march on them.

4. However, this Tribunal is invited to exercise its inherent powers under Rule 3 of the Co-operative Tribunal (Practice and Procedure) Rules, 2009 [which is a replica of Section 3A of the Civil Procedure Rules, 2010] which provides as follows:

Nothing contained in these Rules shall limit or otherwise affect the inherent power of the Tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal.

The ends of justice are the primary consideration of this Tribunal, and while seeking to attain the same, the Tribunal is enjoined to look at circumstances surrounding the issue of Summons and why they were not served with the Statement of the Claim.

5. We note that the Claim was instituted by a Statement of Claim, and it was filed together with an Application under Certificate of Urgency, that this Tribunal proceeded to handle. By this time, the Claimant was required to serve upon the Respondent both the Application and the Statement of Claim, to enable the Respondent to understand the nature of the case against them, and put in a response to the Application. And this was done. The ends of justice were to have the Respondent adequately notified of the proceedings against them, which has not been disputed by the Respondent. Equity looks at the substance rather than the form.

6. Indeed, we cite with affirmation the case of Board of Trustees of African Independent Pentecostal Church of Africa Church -vs- Peter Mungai Kimani & 12 Others [2016] eKLR. The Respondent needed to have demonstrated the legal or equitable prejudice suffered upon them due to the non-service of the Summons, absent of which, their objection would be deemed as a technicality of procedure. Rule 4 of the Co-operative Tribunal (Practice and Procedure) Rules [ibid] 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 procedure.”

7. In view of the foregoing, we are guided by the case of Karachi Walla Nairobi Ltd -vs- Sanji Van Mukherhjee [2015] eKLR where Honourable F. Ochieng J stated that:

“J Kamau J made the following observation when determining that application: courts have wide and unfettered discretion to enlarge time to allow parties to do certain acts where time limitation have been given and to proceed d to determine matters without undue regard to technicalities as provided in Article 159(2)(d) of the Constitution of Kenya, 2010. ..”

We agree with the above decision.

8. In the interest of justice, we therefore find that the Objection dated 4th June 2021 should fail, and the matter to proceed to full hearing, wherein the Respondent will be given a chance to Defend their cause and substantive justice be served upon all parties.

ORDERS

9. We therefore Order as follows:

a.The Respondent’s Notice of Preliminary Objection dated 4th June 2021 is dismissed with costs in the cause;

b.The matter to proceed to full trial: parties to file and exchange their witness statements and documents within 30 days hereof; and

c.Mention for Directions on 9. 11. 2021.

Ruling signed, dated and delivered virtually at Nairobi this 2ndday of September,2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Mureithi Advocate for Claimant: Present

Muriuki Advocate for Respondent: Present

Hon. B. Kimemia Chairperson Signed 2. 9.2021