[2024] KECPT 1724 (KLR)

Kariuki v Sheria Sacco Society Limited (Tribunal Case 421 (E472) of 2023) [2024] KECPT 1724 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1724 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 421 (E472) of 2023

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

October 31, 2024

Between

Joyce Wangari Kariuki

Claimant

and

Sheria Sacco Society Limited

Respondent

Ruling

Application 2. The Application dated 1st February, 2024 was brought under certificate of urgency for the following reasons:i.That the Claimant had obtained interlocutory judgement against the Respondent and the matter was coming up for formal proof on 11th March, 2024. ii.That there was an oversight on the Respondent’s front desk officer who received the court documents and failed to channel them to the right authority for the necessary action in good time.iii.That as a result of the delay, Counsel for the Respondent was instructed late and was in the process of filing a Statement of Defence when the claimant obtained the interlocutory judgement.iv.That the Respondent is desirous and ready to defend the suit.v.That the Respondent’s Statement of Defence raises triable issues.vi.That unless the Honorable Tribunal intervenes and issues instant orders to set aside the interlocutory judgement, the Respondent will suffer an injustice and will have been denied the right to be heard.

3. In response, the Claimant filed her Replying Affidavit dated 4th March, 2024 stating as follows:i.That the Application is malicious, misconceived, incompetent and an abuse of the court process.ii.That the Respondent ought to have filed a response within 15 days after service of the Summons but deliberately failed to do so.iii.That the Application seeks equitable remedies and equity does not aid the indolent but the vigilant.iv.That the time from 16th August to 13th October is almost two months in which the Respondent failed to respond and had only entered appearance.v.That the Respondent has not provided sufficient reason as to why they did not file their response on time.vi.That the Claimant would suffer prejudice as the Respondent has always treated her with contempt and derision by withholding information and only giving her two cheques after being taken in circles for months.vii.That since 2019 when the Claimant’s mother passed away, she has been following up on information and by burial payments which the Respondent has kept away from her and only managed to provide information once she engaged the services of her current Advocate.

4. On 22nd April, 2024 this Tribunal gave directions for the Application to be canvassed by way of written submissions. The Claimant filed their written submissions dated 7th May, 2024 raising among others issues:a.That there is a clear sign of indolence and total disregard for the court processes and the Respondent has been taking their sweet time to deliberate on the matter and as such, should not be allowed to benefit from the deliberate disregard to the Tribunal as justice delayed is justice denied.b.That's a Court cannot wait endlessly for parties to comply with timelines that are given by the rules of court and as such, there must be consequences for failure by a party to comply with the timelines.

5. The Respondent filed their written submissions dated 24th April, 2024 raising among others issues:a.That it is trite law that a party should not be made to suffer the mistakes that are not of their own doing.b.That's the right of a party to be heard should not be overlooked because of a mistake or an oversight.c.That the Claimant by raising the issue of Burial Benevolent Fund, has raised triable issues that can only be resolved at trial.d.That the Application is substantive and the Respondent will be prejudiced If the suit is not heard and determined on merit.e.That the Tribunal has discretion to set aside the interlocutory judgment in the best interest of justice.

6. We have considered the Application dated 1st February, 2024 plus the submissions filed, and the only question remaining for determination is as to whether this tribunal should exercise its discretion to set aside it's interlocutory judgment and allow the suit to be heard on the merit.

7. Should the tribunal exercise its discretion to set aside the interlocutory judgment and allow the suit to be heard on merit?

8. This being an Application that calls for the exercise of judicial discretion, that discretion must be based on fixed principles and exercised on the basis of evidence, with the burden of disclosing material facts falling squarely on the party seeking the court’s discretion. One of those fixed principles expressly provides that the applicant must satisfy the Court that he or she has a good cause for doing so.

9. In First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC No. 2255 of 2000 [2002] 1 EA 65, the Court set out the factors to be considered in deciding whether or not to grant an Application for discretion, and those factors can be summarized to include:i.The explanation if any for the delay in defending the suit;ii.The merits of the contemplated action, whether the matter is arguable and deserving a day in court or whether it is frivolous and would only result in delaying the course of justice;iii.Whether or not the other party can adequately be compensated in costs for any prejudice that they may suffer as a result of a favourable exercise of discretion in favour of the Applicant.

10. In this particular case, first, the reasons given for the failure to file a statement of defence within the time frame provided in our considered opinion are excusable because sometimes in big organizations, the internal bureaucracies involved make some things and or processes to fall through the cracks leading to delays. Second, it is also excusable that a party should not be punished for misgivings or mishaps that are not totally theirs, for example, for misgivings of their Advocates or officers within their offices especially if they provide a good reason for those misgivings or mishaps. Third, the substantive issues in the claim, for example how much the mother of the Claimant had saved with the Respondent and what benefits she should get at the point of her demise, are issues that should be determined on merit. Last, this is a case where the prejudice suffered by the Claimant can be compensated by costs and as such it is our considered decision as a Tribunal to exercise discretion in favor of the Respondent to allow them defend the suit on the merit.Final Orders:i.The Application dated 1st February, 2024 is allowedii.Parties to file witness statements and documents within 21 days herein.iii.Cost of the Application is in the causeiv.Pre-trial directions on 6. 2.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. Hon. B. Kimemia - Chairperson Signed 31. 10. 2024Hon. J. Mwatsama - Deputy Chairperson Signed 31. 10. 2024Hon. Beatrice Sawe - Member Signed 31. 10. 2024Hon. Fridah Lotuiya - Member Signed 31. 10. 2024Hon. Philip Gichuki - Member Signed 31. 10. 2024Hon. Michael Chesikaw - Member Signed 31. 10. 2024Hon. Paul Aol - Member Signed 31. 10. 2024Tribunal Clerk JemimahMs. Auga for Respondent/Applicant- PresentMiss Musau for Claimant- PresentHon. B. Kimemia - Chairperson Signed 31. 10. 2024