[2024] KECPT 953 (KLR)

Kijabe Line Sacco Limited v Kariuki (Tribunal Case 316 (E108) of 2021) [2024] KECPT 953 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 953 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 316 (E108) of 2021

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

May 23, 2024

Between

Kijabe Line Sacco Limited

Claimant

and

Jacob Boro Kariuki

Respondent

Ruling

1. The matter before us for determination is the Judgment-Debtor/Applicant ‘s Notice of Motion Application dated 23rd August 2023, filed on 29th August 2023. In the Application, the Applicant seeks orders:a.Spentb.That this Honourable court be pleased to issue orders reinstating the application dated 11th April 2022 which sought to set aside Interlocutory Judgment dated 10th September, 2021 and resultant Decree dated 20th September, 2021. c.That this Honourable court be pleased to issue orders operating as setting aside of judgment and stay of decree issued in the proceedings herein pending the hearing and determination of this suit.d.That the granting of orders as prayed is intended to buttress court order dated 21. 4.2022 issued by this court and achieve the ends of justice.e.That the overriding objective and the interests of justice.f.That the costs of the Application be in the cause.

2. The Application is supported by the Affidavit of John Githongo Njoroge sworn on 23. 8.2023 and filed on 29. 8.2023.

3. The Application is premised on the grounds inter alia are:a.That the Applicant was not heard on the Application dated 11. 4. 2022. b.That granting of the orders sought is intended to achieve the aims of justice by affording the Applicant a fair trial and ensure that the order dated 21. 4.2022 is not defeated through the execution of the Decree.c.That the customer deposits with it stand to be lost in execution said unless the orders sought herein are granted, and should the Interlocutory Judgment and the resultant Decree issued against him be executed.d.That the Respondent will not suffer any harm as a consequence of the granting of the orders as requested.e.That the Applicant, will suffer real prejudice if the Application is not reinstated as they will be condemned unheard and denied a chance at a fair trial.

4. In opposing the Application, the Respondent relied on Replying Affidavit sworn by Jacob Boro Kariuki on 25th September, 2023. In response to the Respondent’s Replying Affidavit, the Applicant filed further to its Supporting Affidavit, an Affidavit in reply to the Respondent’s Replying Affidavit. The said reply to the Replying Affidavit was sworn by John Githongo Njoroge on 19. 2.2024.

5. The parties agreed to canvass the Application by way of written submissions. The Applicant’s submissions are dated 19. 2.2024, while the Respondent’s submissions are dated 18. 3.2024.

Applicant’s Case 6. The Applicant states that it was not given an opportunity to be heard on the Application dated 11. 4.2022 due to an error of mis diarizing of date on the part of the Applicant’s advocates ; that the error of the advocate ought not to be visited upon the client.

Respondent’s Case 7. The Respondent states that the Applicant was indolent in the execution of the Application dated 11. 4.2023, that the discretion to stay execution should be exercised judicially and not to assist a party who has deliberately sought to obstruct or delay the course of justice.

Determination 8. Both parties have submitted extensively on the issue of setting aside of the Interlocutory Judgment herein. However, we shall restrict ourselves to the Applicant’s Application dated 23. 8.2023.

9. We have considered the documents filed by both the Applicant and the Respondent including the written submissions and the case law cited.

10. We note from the record that the Applicant/judgment Debtor’s Application dated 11. 4.2022 was slated for mention on 3. 10. 2022 for purposes of confirmation of Applicant’s further Affidavit and written submissions as well as filing of Respondent’s response thereto and written submissions.

11. On the said date the Judgment Debtor /Applicant’s Advocate failed to appear and the Respondent’s Advocate, being present urged the Tribunal to dismiss the Applicant’s Application, for the Applicant’s non-attendance, despite having not responded to it.

12. It is the duty of this Tribunal to dispense justice to parties appearing before it.

13. The judgment entered against the Judgment-Debtor /Applicant herein is interlocutory and the Applicant was within its right to apply for the setting aside of the said judgment.

14. Similarly the Respondent was required to respond to the Application to enable the tribunal render a considered decision.

15. It is our considered view that it would be unfair to deny the Applicant a chance to have its Application reinstated for hearing, especially when the reason put forth is an error on the part of the advocate in diarizing the mention date of case. In our bid to administer justice fairly and without undue technicality and looking at the totality of the matter, we agree with the High Court Raymonds Construction Company (Nig) Limited v Festus M’arithi M’mboroki (2022) eKLR. Where the judge relied on the decision in Lochab Brothers Limited v Peter Kahima T/a Lumumba & Lumumba Advocates (2003) eKLR. and Gladys Njeri Kinyuni v Langata Development Company Limited & Another(2016) eKLR and Films Roner International Limited v Cannon Film Sales Limited (1980) 3 ALL ER 772, in setting aside orders of dismissal of an Application.

16. We therefore exercise our discretion and allow the Applicant’s Notice of Motion Application dated 23. 8.2023 and make the following orders:i.That the Judgment Debtor’s Notice of Motion Application dated 11. 4.2022 is hereby reinstated for hearing.ii.That the Interlocutory Judgment dated 10. 9.2021 and its Consequential Orders pending the hearing and determination of the Application dated 11. 4.2022. iii.That both parties to file and serve all their documents and written submissions in respect of the Application dated 11. 4.2022 within 14 days from the date of this ruling.iv.That there be a mention of the matter on 7. 8.2024 Notice to issue, to confirm the filing and service of all documents and to take a date for ruling .v.That the costs of this Application be borne by the Judgment Debtor /Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 23. 5.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 23. 5.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 23. 5.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 23. 5.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 23. 5.2024HON. PAUL AOL - MEMBER - SIGNED - 23. 5.2024Tribunal Clerk JonahMs. Wambera advocate for the Claimant.HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 23. 5.2024