https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/244

Mati t/a Deprimu General Suppliers v Yetu Sacco Society Limited & another (Tribunal Case E156 of 2024) [2026] KECOPT 244 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KECOPT 244 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E156 of 2024 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 14, 2026 Between Aileen Murugi Mati t/a Deprimu General Suppliers Claimant and Yetu Sacco Society Limited 1st Respondent Michael T Gachoka t/a Beyond Vision Auctioneers 2nd Respondent Ruling Background Facts 1.A brief background of this case is that the Claimant is a member of the Respondent. That vide a loan application dated 28/8/2023, the Claimant applied for a loan of Ksh.1,000,000/= of which after evaluation she was granted Ksh.650,000/=. According to the loan contract signed on 12/9/2023, the loan was payable within a period of 36 months with an interest of 13.5% to be charged on reducing balance method. The loan was thereafter credited into the Claimants account on 18/9/2023.The loan facility was to be secured by a Motor Vehicle Registration No. KCV646D which was to be registered jointly in the names of the Claimant and the Respondent.That on 24/1/2024, the Respondents impounded the aforesaid motor vehicle and stored it in Tims Garage in Nkubu.Aggrieved by the action of the Respondents, the Claimant filled a Statement of Claim dated 15th February 2024 seeking for special damages, refunds, general damages and costs plus interest of the suit.The Tribunal processed the case through the normal court processes and on the hearing date that had been scheduled to take place on 24/3/2025 the Respondents advocate had a difficult time to get his witness despite being given a lot of time to reach them. In the end the Tribunal directed that the Respondents case be closed for want of prosecution. The Application 2.Resulting from the Tribunal’s order to close the Respondents case the Respondents filed the instant Notice of Motion Application dated 1/4/2025, supported by an affidavit sworn by Catherine Maina. The Application is brought under Section 1A, 1B, 3A of the Civil Procedure Act, Order 45 Rule 1 and Article 159(2) (a) (d) of the constitution of Kenya 2010. 3.The Application is seeking for the following orders.i.Spent.ii.That the Tribunal be pleased to set-aside the proceedings and orders entered against the Respondents/Applicants on 24/3/2025 closing the defense case and all orders consequential thereto.iii.That the Tribunal be pleased to re-open the Defendants/Applicants case and allow them to call their witness to ventilate their defense on merit.iv.That the costs of the Application to be provided for.The Application is premised on the grounds on the face of it which grounds are repeated in the statement of Diana Kawira dated 17th July 2025. The Grounds 4.The Respondents contend that one Diana Kawira who was their witness in the matter was not available for the defense hearing on 24/03/2025. The reason being, she got engaged in unexpected commitment that arose. 5.In her statement dated 17th July 2025, Diana Kawira posited that the motor vehicle was to be jointly registered in the name of the Claimant and the Respondents but when they commenced the joint registration of the logbook with NTSA to include the name of the Respondents, the process failed because the logbook had been registered in the name of Mogo Auto Limited and Family Bank Ltd that had not been discharged. 6.As a precautionary measure, the Respondents impounded the motor vehicle KCV646D until the matter is resolved. 7.Having discussed and resolved the matter, on 26/1/2024, the Claimant wrote to Mogo Auto limited and advised them to discharge their interest in the subject motor vehicle. 8.According to Diana Kawira, on 1/2/2024 after the name of the Respondents was registered in the logbook of the said motor vehicle, they instructed Tims Auto Garage ltd to release the motor vehicle to the Claimant and further advised the Claimant to collect it. The Claimant’s Response 9.The Claimant opposed the grounds raised by the Respondent vide a Replying Affidavit dated 24/4/2024 especially on the point that their witness Diana Kawira failed to attend the court hearing on 24/3/2025 because she was attending an urgent sensitive matter. According to the Claimant, that is not the correct position, the correct position is that the Respondents counsel sought to substitute Diana Kawira with another witness. 10.That the Tribunal placed aside the file twice in order to give the Respondent’s counsel time to get in touch with his clients of which he failed in both instances. 11.That the issue of Diana Kawira attending a sensitive matter on behalf of the Respondents was never raised during the hearing session and it is therefore an afterthought. 12.At the same time the Claimant argued that if the Respondents felt aggrieved by the Tribunals order to close the defense case for failure to prosecute their case, they would have filed an Application not later than 7 days. 13.In conclusion, the Claimant deboned that she will suffer prejudice if the instant Respondents Notice of Motion is allowed because she has suffered financial losses which she needs to recover and at the same time she has filed her written submissions. Analysis 14.We have considered the pleadings of the Respondents/Applicants and the Claimant; we have further re- read the oral testimony of the Claimant and examined the evidence on record for both parties. The issues that come out for our determination are:i.Whether the Tribunal can set-aside the order that closed the Respondents’ case and allow the Respondents to process the defense hearing.ii.Who will bear the cost of the Application? 15.On the first issue above we take cognizance that on 14th October 2024, both the Respondent and the Claimant by consent agreed to have an oral hearing of the case on 14/1/2025. On that date, the Claimant testified and was cross-examined by the advocate of the Respondents. Thereafter, the Claimant’s case was closed. 16.Noticing that the Respondent’s witness was not present in court, the advocate immediately sought for another hearing date stating that the witness on record has been in a meeting and that he could not secure her presence. The case was then adjourned for defense hearing on 24th March 2025. 17.Come 24/3/2025, the advocate of the Respondents told the Tribunal that there is a new development from his clients and that they wanted to substitute their witness. In verbatim the advocate stated as follows:“I had informed my witness, however, she informed me that the respondents wish another witness to take over.I am not sure why they have shifted goals”. 18.Given that the witness still works for the Respondents and that sufficient cause was not given for her failure to attend the scheduled defense hearing, the Tribunal noted that the Respondents were not interested to prosecute the case and do not take the Tribunals orders serious, the defense case was therefore closed.The term sufficient cause was discussed by the court in the case of Wachira Kanani v Bildad Wachira 2016 eKLRWhere it was Stated that:“Sufficient cause is a cause for which the Defendant could not be blamed for his absence. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances at hand. Thus, the Defendant must demonstrate that he was prevented from attending court by a sufficient cause” 19.In the Supporting Affidavit of the Respondents dated 1st April 2025 sworn by Catherine maina, there is an explanation that the witness Diana Kawira could not attend the defense hearing because she was engaged in an urgent commitment that arose unexpectedly and whose attendance could not be avoided due to the sensitivity of the matter.This explanation is contrary to what the advocate had earlier informed the Tribunal that his clients wanted to substitute the witness Diana Kawira for another witness. Certainly, this explanation is doubtful because on that hearing date, the advocate of the Respondents frantically attempted to contact her for several hours but he could not raise her. 20.The Tribunal does not view the reason advanced by the Respondent as a sufficient cause to warrant the witness failure to attend court. It is rather an insufficient causeThe court further in the case of Attorney General v Law Society of Kenya & another (2017) eKLR described what constitutes a sufficient cause by stating that;“Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubts in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events” 21.Having established that the statement made by the Defendant advocate and which is contained in the affidavit sworn by Caroline Maina present two different explanations that creates a dilatory and don’t care conduct on part of the Respondent. This kind of attitude of fishing for straws to hold onto in order to remain afloat does not promote truthfulness and it is unacceptable. 22.That aside, a flash back to the reason why the Defendants impounded the Claimants motor vehicle shows that it was a precaution. We note that the Respondents were not patient to allow the Claimant to notify Mogo Auto Ltd to discharge their interest upon the discovery that the joint registration could not proceed. It is further, noted that while the Claimant and the Respondent had a meeting where the matter was resolved, still the Respondent went ahead to impound the Claimant’s Motor vehicle on 24/1/2024 causing her a lot of inconveniences in her business. This raises three pertinent questions.i.Whether the impoundment of the Motor vehicle was the only option that was available to the Respondent?ii.Whether the Claimant was given adequate notice to follow up on the clearance of the registration.iii.What was the big rush when the Claimant had not defaulted on her loan repayment? Discretionary powers. 23.The law is settled on reinstatement of a Suit or Application dismissed by the court. In the case of Shah v Mbogo & another [1967] EA 1116, the court stated as follows:“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” 24.In the instant case, it is not about excusable mistake or error, it is about failure by a respondent to attend and defend a case despite having knowledge of the hearing date. In our view, this is a procedural technicality that the court in the case of Kamau & another v Inspector General of Police & another [2026] KEHC 1038 (KLR) outlined the factors that a court should consider in determining whether to exercise its discretion and held as follows: -“We have carefully considered this application. To set aside an order for dismissal, the Applicant must jump two hurdles. The first is to make the Application within 30 days from the date of the order of dismissal. The Applicant has successfully jumped that hurdle. The second is that the Applicant must present sufficient cause for the failure to attend Court on the appointed date. What will constitute sufficient cause depends on the circumstances of each case. But in our perception, sufficient cause connotes an explanation of such quality or value as would justify setting aside the order of dismissal; a reason that is adequate in law, showing why the Applicant’s request to set aside the order of dismissal should be granted. 25.Regarding filling the Application within 30 days, the Respondent herein filed the instant Notice of Motion within 7 days. Although the Respondents did not give a plausible/sufficient cause to warrant the setting aside of the order, the Tribunal wish to give a second chance to the Respondent to defend the suit in the spirit of Rule 4 of the Cooperative Tribunal (Practices and Procedure) Rules 2009 that provide as follows:“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure”.Subsequently we hereby set aside the Tribunal’s order dated 24/3/2025 and re-open the defense hearing. Similarly, we allow the Respondents to file their defense and all other documents that they may wish to rely on, within 14 days from the date of this ruling. 26.In the meantime, the Respondents are ordered to pay throwaway cost of Ksh.30,000/= to the Claimants before the next mention date. 27.In conclusion and in the light of the foregoing analysis, the Tribunals final orders regarding the Respondents’ prayers contained in the Notice of Motion dated 1/4/2025 are as follows:a.Prayer 1- spentb.Prayer 2- Allowedc.Prayer3 - Allowedd.Costs will be in the cause.Mention for pre-trial directions on 10/9/2026. Notice to issue. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 14/5/2026Hon. Beatrice Sawe Member Signed 14/5/2026Hon. Fridah Lotuiya Member Signed 14/5/2026Hon. Michael Chesikaw Member Signed 14/5/2026Hon. P. Aol Member Signed 14/5/2026Court Assistant – MutaiNo appearance by partiesRuling delivered in their absence.Hon. J. Mwatsama Ag. Chairperson Signed 14/5/2026