[2025] KECPT 273 (KLR)

Kuria v Nachu National Coop Housing Society (Tribunal Case 538 of 2017) [2025] KECPT 273 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 273 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 538 of 2017

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

April 29, 2025

Between

Andrew Kirongo Kuria

Claimant

and

Nachu National Coop Housing Society

Respondent

Ruling

1. The notice of motion application dated 15th December, 2023 was filed by the 1st respondent/applicant for order that1. Spent2. The Honourable Tribunal to enlarge time for filing this review3. Upon granting prayer 2 above, the honourable tribunal be pleaded to review, vary, vacate and/or set aside its judgement orders of 09/11/20214. Upon grant of prayer 3 above, the honourable Tribunal be pleased to consider the 1st respondent’s statement of defence on record and accord an opportunity to file written submissions and therefore, give a reasoned judgement5. Cost of the application be provided for

2. The application based on the grounds on the face thereof and the supporting affidavit of Donald Ochieng Omondi owned on 15th December,2023.

3. The grounds of the application are mainly that the advocates of both parties had agreed that they would attend court virtually on 9th November, 2023 as it would not be possible for them to travel to Nyeri for the physical attendance, that both advocates had agreed that they would explain to the court their inability to attend court and both had hoped to adopt the written statement and put in writing submissions; that both advocates logged in to the tribunal’s virtual platform on the 9th November, 2023 and despite addressing court were ignored and remained on the platform until 2pm when they were logged out, that upon perusal of the record, it was apparent that the honourable tribunal entered judgement for the claimant citing absence of the respondent; that entry of judgement was legally unprecedent for reasons that the 1st respondent/applicant had denied the claim on record; that advocates for the parties were not given an opportunity to represent their clients being despite present in court virtually; that the judgement refer to either the 1st or 2nd respondent; that the quorum indicates “Andrew for the claimant” while Andrew is the claimant and his advocate was on the virtual platform and it seems there was an inadvertent mix up; that the proceedings of 09/11/2023 limits the rights of fair hearing guaranteed under Article 50(1) of the constitution and the same ought to be set aside ex-debito justiae; that it is in the interest of fairness and justice that the orders sought herein be granted.

4. The supporting affidavit owned by Donald Ochieng Omondi, advocate reiterates the grounds of the application fully and produces as exhibit, a copy of the Ruling of the tribunal issued on 09/11/2023.

5. The Supplementary Affidavit owned by Donald Ochieng Omondi on 13th February 2024, the deponent states further that the matter had previously been adjourned at the instant of the plaintiff with the final adjournment being on 9th July, 2023; that the plaintiff’s advocate called him on the 9th November, 2023 indicating that his client was unable ton facilitate him to a physical hearing in Nyeri and there was an agreement to attend court virtually and that the Teams record of the day will bear witness that they were both on the platform and annexed a copy of the communication record with the claimant advocates in response to the 1st respondent’s application, the claimant filed a Replying Affidavit sworn on 1st January, 2024 in which he states that the application is brought in bad faith an after thought and the same should be dismissed with costs and that the application was filed out of time and there is no explanation for the undue delay, that the ,matter has been adjourned severally by the applicant who is intent on delaying the same; that there is no basis to disturbs the same.

6. As at the date of writing this ruling, only the 1st Respondent had filed written submissions dated 27th November 2024.

Determination 7We have considered all the documents filed by the parties herein including the 1st Respondent’s submissions and case-law cited therein and have the following issues to determine;

1. Whether the application dated 13th December 2023 was filed out of time. 8. The judgement against the 1st respondent/applicant herein was entered under the provision of order 12 of the civil procedure Rules, for non-attendance.

9. The application to set aside the same ought therefore to have been brought under order 12. However, this is not being a court of technicality, we shall consider the application without undue attention to procedural technicality.

10. We find that an application for setting aside a judgement entered on default does not have specific time for filing. However, the application ought to be filed within a reasonable time to avoid indolence.

11. The judgement herein, was entered on 9th November, 2023 and the application herein, was filed about a month later. We note that the Ruling was certified on 13th December, 2023, we are satisfied that the application herein was filed within a reasonable time.

2. Whether or not the judgement entered on 09/11/2023 ought to be set aside. 12. From the record, the judgement was entered in default of appearance of the respondent. This being judgement on liquidated claim and judgement having been previously entered against the 2nd Respondent, the judgement entered on 09/11/2023 was against the 1st respondent for its non-attendance.

13. The advocates for the 1st Respondent/Applicant have argued that there was an agreement between himself and the advocate for the Claimant to attend court virtually. However, as per the Tribunals record, as at the same time the matter came up for hearing, the advocate of the 1st respondent/applicant was not in attendance,

14. There is no sufficient reason from the said advocate as to why he was not in attendance. Be that as it may, this tribunal shall consider other factors and circumstances of the matter in the exercise of its discretion other than the fact that the Application was filed within a reasonable time, we find that the 1st Respondent/ Applicant has a defence on record which raises several issues which in our consideration ought to be rediscussed in a hearing.

15. It is therefore, in view of the foregoing and in the interest and in exercise of our unfettered discretion of justice that we find that this judgement ought to be set aside.

16. As held by Lord Atkin in the case of Evans v Barttam at page 650 as has been quoted with in Patel v EA Cargo handling servicesLtd (1974) EA 75. “The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to revoke the expression of its exercise power, when that has been obtained only by a failure to follow any of the Rules of procedure.

17. We also on the case of Wachira Karani v Bildad Wachira (2016) eKLR in which it was held that,“The fundamental duty of the court is to do justice between the parties. It is then, fundamental that to that duty, those parties should each be allowed a proper opportunity to put their cases upon merits of the matter.

18. We therefore find it prejudicial and unjust to punish the 1st Respondent for an error on the part of its advocate.

19. In the upshot, the 1st Respondent/Applicant’s application dated 1st December 2022 is hereby allowed in terms of prayer two. Consequently, the judgement entered by the Tribunal on 09/11/2023 against the 1st Respondent/Applicant is hereby set aside.

20. The costs of the application are awarded to the Claimant/Respondent since the parties were ready to proceed with the hearing as at the 9th November, 2023. We hereby fix the case for hearing on the 1st day of September 2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 29. 4.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 29. 4.2025HON. BEATRICE SAWE - MEMBER - SIGNED - 29. 4.2025HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 29. 4.2025HON. PHILIP GICHUKI - MEMBER - SIGNED - 29. 4.2025HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 29. 4.2025Tribunal Clerk JemimahNo appearance by the parties.HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 29. 4.2025