Kimugei v Sima Sacco Ltd

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT ELDORET TRIBUNAL CASE NO. E030 of 2022 (Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member) DAN K. KIMUGEI……………………....…….….... CLAIMANT/RESPONDENT -VERSUS SIMA SACCO LTD……........................................RESPONDENT/APPLICAN T RULING 1. This ruling dispenses the Notice of Motion Application dated 27th January 2026. The Application is supported by an affidavit sworn by one ENOS GATI OWINO, the Respondent’s advocate and brought under Section 77(3) and 81 of the Co-Operative Societies Act Cap 490 Laws of Kenya Rules 17, 19 and 20 of the Co-operative Tribunal (Practice and Procedure) Rules, Article 50(1) and 159 (2)(d) of the Constitution of Kenya 2010, and guided by order 12 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010 And all other enabling provisions of the Law. The Application seeks the following orders: a) Spent; b) The order made on 27th day of January 2026 dismissing the Application dated 21st day of January 2026 for want of prosecution be set aside. c) The Application dated 21st day of January 2026 be reinstated and admitted for hearing on merit. d) There be a stay of execution and lifting of the proclamation pending the hearing and determination of the reinstated Application. e) Costs of this Application be in the cause. 2. The Application is premised on the grounds on its face which are inter alia that: The Applicant states that the Application dated 21 st January 2026 was listed for directions before the Honourable Tribunal on 27th January 2026, and that the Applicant was present and ready to proceed. However, due to a technical hitch with the Court’s system, the Applicant was unable to address the Tribunal despite being ready, as evidenced by screenshots of the Court’s response at 09:20 and 09:30 hours. The Applicant maintains that the failure to proceed was neither deliberate nor due to lack of interest, noting that they remained in Court until 13:30 hours and thereafter contacted the Tribunal’s provided telephone number to establish the position, only to find that no directions had been posted on the CTS portal. That the Application was subsequently dismissed for want of prosecution, exposing the Applicant to serious prejudice, including possible unlawful execution. The Applicant therefore contends that it is fair and just for the dismissal to be set aside, as the Tribunal has inherent power to grant such relief. 3. The Respondent filed a response to the application. In their response, the Respondent opposes the Applicant’s application to set aside the dismissal, arguing that the Applicant and/or advocate failed to attend Court on 27th January 2026 without a reasonable explanation, despite the Respondent being present and ready to proceed. It contends that the dismissal for want of prosecution was proper, that the Applicant has not met the threshold for reinstatement, and that the application is intended to delay execution and unfairly prejudice the Respondent from enjoying the fruits of her judgment. 4. The Applicant filed a further Replying Affidavit dated 11th February 2026. In the affidavit, The Applicant maintains that the dismissal of its Application dated 21st January 2026 was caused by a technical failure of the Tribunal’s Case Tracking System, which was beyond its control and is supported by screenshots and other evidence. It asserts that it remained diligent, contacted the Tribunal’s registry, and promptly sought reinstatement, arguing that the dismissal would occasion grave injustice, particularly as execution proceedings are ongoing. The Applicant therefore urges the Tribunal to set aside the dismissal, reinstate the Application for hearing on its merits, and grant an interim stay of execution pending its determination. 5. The matter was canvased by way of written submissions and both parties filed their submissions. 6. According to the Applicants, its failure to attend Court on 27th January 2026 was due to a technical failure of the Judiciary’s CTS platform, as supported by screenshots and evidence of attempts to contact the Tribunal. It argues that the dismissal should therefore be set aside and the application reinstated in the interests of justice. The Applicant further contends that the underlying ex-parte judgments were entered without proper service, rendering them irregular and liable to be set aside, and that a stay of execution is necessary to prevent the sale of essential SACCO assets and irreparable harm. It consequently prays for reinstatement of the application, stay of execution, setting aside of the ex-parte judgments and consequential orders, and costs in the cause. 7. The Respondents on the other hand, oppose the Applicant’s application to reinstate the dismissed application and to stay execution, arguing that the application is an abuse of the court process and amounts to a replica of the earlier application dismissed for non-attendance on 27th January 2026. The Respondent contends that the Applicant has failed to provide a credible explanation for its non-attendance despite the matter being called out at about 11:00 a.m., and that the alleged technical hitch does not excuse the lack of diligence. Relying on the principles in Shah v Mbogo, Patel v E.A Cargo Handling Services Ltd and other authorities, the Respondent argues that the Tribunal’s discretion should not aid an indolent litigant or permit repeated applications seeking the same relief. On the prayer for stay of execution, the Respondent submits that the Applicant has failed to satisfy the requirements of Order 42 Rule 6 of the Civil Procedure Rules, particularly by failing to demonstrate substantial loss, absence of unreasonable delay, or provision of security for due performance of the decree. The Respondent maintains that it is a successful litigant entitled to enjoy the fruits of its judgment and that the Applicant’s continued applications merely delay execution. It therefore urges the Tribunal to dismiss the application with costs and allow the judgment and execution process to proceed. ANALYSIS 8. This Tribunal has noted the application the responses and the submissions of the parties. The question before this Tribunal is whether the Applicant’s application is merited 9. Reinstating an application is at the 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. The question before us, therefore, is whether we can exercise our discretion and reinstate the Application dated 21st January 2026. The Applicant informs this Tribunal that the reason they were not in court is that the system dropped and they could not be able to join in. They have indeed attached screenshots that clearly show the system malfunction and the date it malfunctioned. Having looked at the screenshots, we are convinced that the non-attendance was occasioned by system downtime and the same is something beyond the control of the Applicant. 11. In the upshot of the foregoing, we find that the Notice of Motion Application dated 27th January 2026 is merited and the Notice of Motion Application dated 21st January 2026 is hereby reinstated with no orders as to costs. Ruling dated and delivered virtually at Nairobi this 27th day of August, 2026. Hon. J. Mwatsama Chairperson Signed 27/8/2026 Hon. B. Sawe Member Signed 27/8/2026 Hon. P. Aol Member Signed 27/8/2026 Hon. Fridah Lotuiya Member Signed 27/8/2026 Hon. M. Chesikaw Member Signed 27/8/2026 Court Assistant – J. Koki Rotich advocate for the Claimant Gati advocate for the Respondent/Applicant Rotich advocate; We pray for Notice of Motion dated 21st January 2026 be canvassed by way of written submissions. Tribunal order; 1. Notice of Motion dated 21st January 2026 be canvassed by way of written submissions. 2. Respondent/Applicant to file and serve Further Affidavit if need be as well as written submissions 14 days from today. 3. The Claimant/Respondent to file written submissions 14 days upon service. 4. Mention to confirm compliance and get a ruling date on 24 th November 2026. Hon. J. Mwatsama Chairperson Signed 27/8/2026