Kanoru v UCHUKUZI PSV Savings and Credit Co-operative Society Ltd

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. 75 OF 2019 UCHUKUZI PSV SAVINGS AND CREDIT CO-OPERATIVE SOCIETY LTD………….....CLAIMANT/APPLICANT -VERSUS RICHARD WAMBUGU KANORU..............................................RESPONDENT RULING 1. This ruling dispenses the Notice of Motion Application dated 21st April 2026. The Application is supported by an affidavit sworn by one Kenneth Munyui, the Secretary of the Claimant and brought under Rule 14 and Rule 17 f the Co-operative Tribunal (Practice and Procedure) Rules, 2009, Section 3A of the Civil Procedure Act (Cap 21 Laws of Kenya), Order9 Rule 9, Order 12 Rule 7 of the Civil Procedure Rules 2010, and all other enabling provisions of the law. The Application seeks the following orders: a) Spent; b) That this Honourable Tribunal be pleased to set aside the order dismissing this matter for want of prosecution. c) That this Honourable Tribunal be pleased to reinstate this claim for hearing and determination on merit d) That the costs of the Application be in the cause 2. The Application is premised on the grounds on its face which are inter alia that: The matter was dismissed for want of prosecution and marked as closed. That the failure to prosecute the claim was not deliberate but was occasioned by the previous advocates. That the Respondent will not suffer any prejudice that cannot be compensated by way of damages. 3. A brief background of this matter is that the Applicants instituted a Claim for the repayment of an outstanding debt against the Respondents for ksh. 702,559/-. The Claim was instituted on 6th February 2019. There is no much activity in the matter, and in May 2024, this Tribunal issued a dismissal notice, whereby the matter was dismissed on 25th June 2024 for want of prosecution. 4. 5. The Respondent did not respond to the Application. The matter was to be canvassed by way of written submissions, and none of the parties filed their submissions. ANALYSIS 6. This Tribunal has noted the application and the question before us, therefore, is whether the Applicant is entitled to the prayers sought to wit setting aside the order dismissing the suit and reinstating the same for hearing and determination on merit. 7. Dismissal for want of prosecution is provided for in Order 17 Rule 2 that; “(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)If cause is shown to the satisfaction of the court it may make such orders as it thinks fit to obtain expeditious hearing of the suit. (3)Any party to the suit may apply for its dismissal as provided in sub-rule 1.(4) The court may dismiss the suit for non-compliance with any direction given under this Order.” 8. In this case, the Tribunal issued a notice for the Claimant to show cause why the matter should not be dismissed. The Claimant did not show cause, and neither did they dispute receiving the notice. 9. Reinstating a suit is a discretion of the court and in Bilha Ngonyo Isaac vs. Kembu Farm Ltd & another & another [2018] eKLR ((JN. Mulwa J), the court had to say this about discretion “The discretion is intended so as to be exercised to avoid injustice or hardship resulting from inadvertence or excusable mistake or error but is not designed to assist a person who has deliberatively sought whether by evasion or otherwise to obstruct or delay the course of justice.” 10. Further in Ruga Distributors Limted vs Nairobi Bottlers Limited [2015] eKLR, Aburili J. cited with approval the decision of Kimaru J. in Savings and Loans Limited vs Susan Wanjiru Muritu Nairobi HCCC397/2002, where he stated; “.... it is trite that a case belongs to a litigant and not to her advocate. A litigant has a duty to pursue the prosecution of his or her case…In the present case, it is apparent that if the defendant had been a diligent litigant, she would have been aware of the dismissal of her previous application for want of prosecution soon after the said dismissal.” 11. On this matter, the question is whether this Tribunal can exercise its discretion to reinstate the matter for hearing on merit. The Claimant’s advocate informs this Tribunal that the delay in prosecuting the matter was occasioned by the previous advocate who was on record for the Claimant. However, as Kimaru J. rightly put it above, the matter belongs to the litigant. Clearly, the Applicant was indolent in the manner it handled this suit. 7 years is a long time for one to suddenly wake up and realize that his matter is not proceeding as it should have been. The matter at hand is for a refund of a loan, which is members’ money held in trust by the Applicant. The Applicant ought to have been keen on such matters and follow the same closely. 12. In the upshot of the foregoing, we find that the Application dated 21st April 2026 is devoid of merit and the same is hereby dismissed, with no orders as to costs. Ruling signed, dated and delivered virtually at Nairobi this 3rd day of September, 2026. Hon. J. Mwatsama Chairperson Signed 3.9.2026 Hon. Beatrice Sawe Member Signed 3.9.2026 Hon. Fridah Lotuiya Member Signed 3.9.2026 Hon. Paul Aol Member Signed 3.9.2026 Hon. Michael Chesikaw Member Signed 3.9.2026 Tribunal Clerk J. Mutai