[2024] KECPT 222 (KLR)

Kibira & another v Biashara Sacco Society Limited (Tribunal Case 751 of 2019) [2024] KECPT 222 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 222 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 751 of 2019

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

March 7, 2024

Between

David Macharia Kibira

1st Claimant

Mary Nyambura Macharia

2nd Claimant

and

Biashara Sacco Society Limited

Respondent

Ruling

1. The matter before us for determination is the Respondent/ Applicant’s Notice of Motion Application dated 18th November, 2022, filed on 1st December, 2022, for ORDERS:a.SPENT.b.SPENT.c.That the Honorable Tribunal be pleased to set aside, review and/ or vary the orders of 12th October, 2022 and set down this suit for hearing interparty.d.That the costs of this Application be in the cause.

2. The Application is premised on the grounds:a.That the Tribunal set the matter for compliance for filing of Submissions on 24th January 2023. b.That the Applicant’s case was not heard.c.That the Tribunal has inherent power to exercise discretion to avoid judgement to be delivered without the Applicant’s case being heard.The Application is supported by the Affidavit of Anthony Ng’ang’a Mwangi sworn on 18th November, 2022, filed on 1st December 2022. In the Supporting Affidavit, the deponent, an advocate of the High Court states that the matter came for hearing on 12th October, 2022, when he was absent; that on the said date he tried to log in to the Tribunal’s link in order to join the proceedings virtually but was not successful; that counsel for the Respondents proceeded to have their case heard in his absence.The Applicant further states that it is in the interest of Justice and preserving the Applicant’s right to a fair trial that the orders sought to reopen the proceedings be granted and the Applicant’s evidence be taken and that no prejudice shall be in succession to the Respondents if the orders sought are granted.The 1st and 2nd Claimants/ Respondents opposed the Respondent’s Application by way of a Replying Affidavit sworn by the 1st Claimant on 20th January, 2923, filed on 24th January, 2023. In the Affidavit, the Claimant states:i.That when the mater came up for mention on 16th November, 2021, the Advocate of both parties were present and consented to have the case fixed for full hearing on 12th October, 2022. ii.That on the said October, 2022, the matter was listed for hearing with proper directions that the hearing shall be in open court as is the custom at the Co-operative Tribunal.iii.That on the said 12th October, 2022, the Respondent’s Advocate neither got in touch with the Claimant’s Advocate nor the Court’s Assistant to try explain their predicament hence it is clear this narrative is made up.iv.That had the Advocate for Respondent been waiting at the lobby on that day and was not admitted, he would have immediately there often taken steps to move the Tribunal, and not after two months.v.That the Claimant further cites rule 8 of the Advocates Practice Rules, that prohibits Advocates from deponing Affidavits to contentious facts as they express themselves to cross-examination; and the Affidavit of the Applicant’s Advocate ought to be struck out as defective.vi.That if the Respondent was keen to be heard as alleged in paragraph 5 of the Supporting affidavit of the Advocate, it would have instructed its officials to institute an Application.vii.That it is in the interest of Justice that the Application is struck out.The Application proceeded by way of filing Written Submissions by the parties.

APPLICANT’S SUBMISSIONS 3. The Applicant’s Written Submissions dated 27th January, 2023 were filed on 2nd May, 2023. In its submissions, the Applicant states that it has a good case before the Tribunal and should be allowed to ventilate it. That the Tribunal has absolute discretion to allow the Application to avoid injustice being visited on the Applicant, where it is clearly shown that there are no attempts to subvert or delay justice; that the Applicant has duly complied with the directions issued by the Tribunal on 26th July, 2022 to file documents and was therefore willing and ready to be heard on the case; that failure to get through the Tribunal’s Lint is a normal occurrence and therefore there is nothing fraudulent and/or attempt to delay justice:

CLAIMANT’S SUBMISSIONS 4. The Claimant’s Written Submissions dated 16th March, 2023 were filed on 2nd May, 2023. In their Submissions, reiterates the contents of their Replying Affidavit and raise two issues for determination.

i. Whether the proceedings for the 12th October, 2022 should be set aside and/or varied. 5. On this issue, the Claimant submits that whereas courts will readily excuse a mistake of counsel, it is not sufficient to claim mistake of counsel, but must show tangible steps taken to follow up the matter; that the Respondent/Applicant has not discharged the burden of proof concerning the mistake of the counsel for the reasons:a.The cause list of October, 12th 2022 did not contain a link for virtual access, therefore Respondent’s counsel cannot purport to have been waiting in virtual lobby.b.The Respondent moved the Court in December 2022, two months from the 12th of October, 2022, this explains the causal manner the Respondent has for the case.c.After the hearing on 12th October, 2022, the Respondent neither got in touch with the tribunal nor the Claimant’s Advocate to inquire on the directions given by the Tribunal.d.The hearing date of 12th October, 2022 was taken by consent of both parties.e.The Respondent was not aggrieved, it has not moved the Tribunal.

ii. Whether the Supporting Affidavit sworn on the 18th November 2022 should be set aside. 6. The Claimant/Respondent reiterates the argument that an Advocate should not depone to contentious facts at any stage of litigation.The Claimant Respondent further submits that the Respondent’s Advocate in paragraph 6 of the Affidavit about prejudice that may be occasioned on the Claimant that prejudice may only be proved through facts and evidence.Both parties cited case law in support of their Submissions.

ANALYSIS AND DETERMINATION. 7. We have considered the Notice of Motion Application herein and Supporting Affidavit, the Replying Affidavit thereto and the Written Submissions of parties and have only the following issues for determination.i.Whether or not the Respondent/ Applicant is entitled to the orders sought in the Notice of Motion Application dated 18th November, 2022. ii.Who should bear the costs of the Application.

1. Whether or not the Respondent/ Applicant is entitled to the orders sought. 8. The Applicant has asked us to set aside, review and/ or vary the orders of 12th October, 2022 and set down this case for hearing interparty citing in the Supporting Affidavit the failure of the Advocate to log into the virtual court.It is trite law that he who alleges must prove. The hearing date of 12th October, 2022 was taken by consent of parties hence the Applicant and his Advocate were well aware of the requirement to attend court for hearing. It is not clear to us why the Applicants Advocate was trying to log into a virtual court for hearing when he was required to attend court physically for hearing.Whereas we agree with the Applicant that a court should exercise judicial discretion fairly without undue hardship to parties, we have ton been convinced that there was at all a mistake, on the part of the Applicant’s Advocate. No evidence is produced by the Applicant’s Advocate that indeed there was a virtual Tribunal hearing on the case which he failed to log in to. From the Record, the hearing of the case was in open court and there was no attendance on the part of the Applicant or his Advocate.It is already established in law that judicial discretion should be exercised on the basis of actual circumstances and not on account of sympathy or a personal opinion or wish.The Applicant has not provided sufficient reason why he did not attend court on 22nd October, 2022; or why it took two months to apply hence.Why we should exercise judicial discretion in favor herein, or set aside court proceedings which are properly in place.

2. Whether or not the Applicant’s Advocate has deponed to contentious issues which ought to be sworn by the litigant: 9. The Claimant’s Advocate asks us to strike out the Applicant’s supporting Affidavit on the ground that the Applicant’s Advocate has deponed to contentious issues.The Affidavit before us has been sworn by the Applicant’s Advocate on matters of civil procedure and legal argument on prejudice and judicial discretion. These are not contentious matters but matters within the Knowledge and undertaking of an Advocate.We place reliance on the position taken by the Court of Appeal at Mombasa in Civil Appeal No. E303 of 2022 (Nyamweya, JA) and find that the Supporting Affidavit sworn by Anthony Ng’ang’a Mwangi is properly on Record;1. Costs: It is trite unless otherwise decided for reasons provided, the costs shall follow the cause. In this case, the proceedings for taking a judgement date were stayed to give way for the Application herein. We do not wish to deviate from this legal position of awarding costs to the successful party.

10. In view of the foregoing reasons, we hereby find that the Respondent/ Applicant’s Notice of Motion Application dated 15th November, 2022 lacks merit and the same is hereby dismissed with costs to the Claimant’s/ Respondents.The case shall be mentioned on the 17th day of April 2024 for purposes of taking a Judgment date.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024TRIBUNAL CLERK JEMIMAHWanjiru advocate holding brief for Ng’ang’a advocate for RespondentGikonyo advocate holding brief for Guandaru Thuita for ClaimantHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024