[2024] KECPT 912 (KLR)

Kinyua v Unaitas Sacco Society Ltd (Tribunal Case 1045 of 2015) [2024] KECPT 912 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 912 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1045 of 2015

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

May 30, 2024

Between

Ann Wangui Kinyua

Claimant

and

Unaitas Sacco Society Ltd

Respondent

(QUOTE (An Appeal arising out of the judgment of Hon. J. K. Olga Onalo, SRM delivered on 19. 1.24 in Malindi Sexual Offences Case No. 68 of 2021))

Ruling

1. The Claimant filed a Notice of Motion Application dated 28th April, 2023 under Article 159 (2) (b) of the Constitution, Section 1A, 1B and 3A of the Civil Procedure Act, Orders 12 Rules 6 & & Orders 17 Rule 2, Order 40 Rule 1, 2, 3 and 4 and Order 51, Rule 1, 3, 4, 10, 11, 13 and 16 of the Civil Procedure Rules and all other enabling provisions of Law seeking among others that:1. This Tribunal be pleased to issue/ re-issue an order of temporary injunction restraining the Respondent or his agents from alienating, disposing, selling or dealing in any manner with the Applicants matrimonial property known as TITLE NUMBER IRIAINI KAIRIA/1748 pending the hearing and determination of this Application and subsequent suit.2. This Tribunal be pleased to discharge the dismissal orders and reinstate the suit and subsequently order for reconstruction of a skeleton file or in the alternative allow the Claimant to amend her statement of Claim and file any additional list of documents for purposes of trial.3. This Tribunal be pleased to order the Respondent to file and serve the true and verifiable statements of account for the loan account no 011215000128 from 1st July, 2015 to March 2023.

2. The Application was based on the grounds that:i.The Applicant is the legal owner of property known as TITLE NUMBER IRIAINI KAIRIA/1748 which is matrimonial property and was used as security for loan of Kshs. 10,000,000/= on 13th January, 2014. ii.In 2018, the Applicant began facing financial challenges with low performance in her business at which the Respondent threatened to dispose off the security and on 9th March, 2023 under Section 96(2) of the land Act, the Respondent issued the Claimant with the Statutory Notice of Sale.iii.The amount of Kshs. 9,729,395/= that the Respondent wanted to recover by selling the security is contested as the accrued interests and penalties are unfairly overcharged and are aimed at driving her to bankruptcy.iv.That it is in the interest of justice that this Application be heard and appropriate orders granted.

3. We have considered the orders sought and the grounds raised in support of the orders, and whether this Application is meritorious.Can Injunction Orders Be Issued In A Vacuum (where There Is No Pending Suit)

4. The facts of this case are clear and not in dispute that this Application was filed after the case was dismissed for failure to prosecute the case by the Claimant. To mean, as at the time of filing this Application, there was no suit pending.

5. This in essence means that, this Tribunal has to consider two things:a.Whether to reinstate the case and consider the orders sought within that background, andb.Whether the orders sought can be considered without reinstating the case.First, it is important to note that the very act of reinstating a dismissed case is an act of discretion. Any party who is making an Application for their dismissed case to be reinstated for lack of prosecution must therefore furnish sufficient cause for their inaction to justify why the court should exercise its discretion to reinstate, the case. The Applicant has a heavier duty to prove that there is justification as to why they did not take reasonable steps under the circumstances to prosecute their case.

6. From our records of proceeding, this case was dismissed as part of managing our workload of eliminating cases that appear redundant parties or party who files a case no longer being interested in pursuing it- judicial case management tool. We have considered the Submissions of the Applicant and the reasons as to why she did not take appropriate steps to prosecute this case and why she only “woke up” when the Respondent served her with the statutory notice of sale and it is our considered view that the reasons given are not sufficient to warrant us to exercise discretion to disturb our judgement on dismissal.

7. The loan in question which is the subject of the suit, was taken in 2015 and to lengthen the process of its recovery will be unjust to the Respondent given that both parties had even at some point restructured the loan to allow the Claimant to keep servicing the loan; which she hasn’t serviced substantially from that time it was restructured.

8. Second, we have considered whether the orders the Claimant is seeking can be sought without reinstating, the case, and it is out considered view that litigation must be brought to an end, especially if parties were given an opportunity to be heard on merit and they didn’t raise or prosecute those issues when they had a chance to consider the orders sought. Reinstating the case will give one party an unfair advantage over the other, especially when there was no reasonable explanation or evidence adduced for the orders sought.

9. In is now settled principle that raising or challenging figures is not sufficient a ground to stop a party from exercising their Statutory Power of Sale and as such the Notice of Motion Application dated 18th April, 2023 is dismissed.

FINAL ORDERS 10. The Notice of Motion Application dated 18th April, 2023 is found to be without merit dismissed with costs.

11. File marked as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe Member Signed 30. 5.2024Hon. Fridah Lotuiya Member Signed 30. 5.2024Hon. Philip Gichuki Member Signed 30. 5.2024Hon. Michael Chesikaw Member Signed 30. 5.2024Hon. Paul Aol Member Signed 30. 5.2024Tribunal Clerk JonahNo appearance by parties.Ruling delivered in absence of parties.File ordered as closed.Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024