[2024] KECPT 1529 (KLR)

Micheni v Mugumango Irrigation Farmers Co-op Society (Tribunal Case 486B of 2018) [2024] KECPT 1529 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1529 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 486B of 2018

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

September 26, 2024

Between

Bonface Micheni

Claimant

and

Mugumango Irrigation Farmers Co-op Society

Respondent

Ruling

1. For determination is a Notice of Motion Application dated 27th September, 2023 which was filed by the Claimant under a Certificate of Urgency, seeking orders for:i.Spent.ii.That the Tribunal vacate/set aside and/or varies the orders given on 20th September, 2022, dismissing the suit and thereon consequently reinstate the suit.iii.Such other, further, incidental and/or alternative orders as the Tribunal may deem just and expedient.

2. In the Notice of Motion Application, the Claimant raised seven (7) grounds listed from paragraph 8-14 as the reasons why the suit should be reinstated. The same grounds are reiterated in a Supporting Affidavit dated 27/9/2023, sworn by the advocate of the Claimants.

3. On 1/7/2024, the Tribunal directed that the parties should file and serve Written Submissions. However, the Claimants complied with the Tribunals directions and the Respondents stated that they would rely on their Statement of Defence dated 2nd November, 2018.

4. After analyzing the evidence on record, one (1) issue stands out for determination that is:

Whether the dismissal should be vacated and the suit reinstated? 5. First, it should be understood that the Claimants filed this suit on 5/10/2018 and on 7th November, 2018, the Claimant filed an Application and requested for interlocutory judgement which was declined by the Tribunal because the Respondent had entered appearance via an Application of Memorandum of Appearance dated 2nd November, 2018 and a Statement of Defence dated the same day.

6. When the after remained moribound for a long time, the Tribunal issued a notice on 1/9/2022 to dismiss the suit under Order 17 Rule 2 of the Civil Procedure Rules 2010, which reads:1. “In any suit in which no Application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and is cause in not shown to its satisfaction, may dismiss the suit.”

7. On 20th September,2022 the matter came up as per the notice and because the parties failed to make appearance, the Tribunal dismissed the suit.

8. Aggrieved by the dismissal, the Claimant filed the Instant Notice of Motion, Application dated 27/9/2023. The Tribunal has carefully analyzed the reasons why the dismissal should be lifted to enable the reinstatement of the suit. The reasons/grounds stated under paragraph 8 to 14 in the Notice of Motion are all convincing but paragraph two of those grounds stuck our attention as most convincing.

9. Under paragraph 10, the Claimant stated that:“There exists no reason for serving the Claimant in person considering that he had an advocate on record. It is trite that service of all documents is to be effected through the advocates offices which in the circumstances was never adhered to.”Looking at the Affidavit of Service dated 12th September, 2022 sworn by Robert Nzyoka, the Court Process Server at paragraph 3, confirmed that he served Eddie Njiru & Advocates through E.M.S and the Claimant personally through normal postage. This creates doubt whether the Claimant’s address was captured properly by the process server posted further. There is no evidence on record which show that the letter was not posted on 20/9/2022.

10. Under paragraph 12, the Claimant state that:“The dismissal of the suit was therefore not within the Claimant’s knowledge nor within the knowledge of his advocate.”Common sense dictates that there is no way that the Claimant or his advocate would have known about the Notice of Dismissal of the suit if none of them was served in time.

11. Prayer two (2) of the Claimant regarding the setting aside of the dismissal orders is at the discretion of the Tribunal. On this note, the Tribunal rely on the case of Jomo Kenyatta University of Agriculture and Technology Versus Musa Ezekiel Oebal (2014) eKLR where the Court stated:“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice.”The door of justice cannot be closed for the Claimant whose mistake is inordinate delay for one (1) year yet it is common knowledge that the Courts in Kenya have cases that have remained in the courts for more than 10 years.

12. In the premises, the mistake of the court process server should not be visited upon the Claimant. Equally, Article 159 of the Constitution of Kenya 2010 provides that justice should be administered without undue regard to procedural technicalities such as the grounds annunciated by the Respondent in their grounds of opposition contained in their Application dated 19th January, 2024.

13. For justice to be dispensed fairly in this matter, we consider that the dismissal of the suit be vacated and that the matter be set for hearing on merit.

Orders. 14. On the Claimant’s Notice of Motion Application dated 27th September, 2023, we hereby order as follows:i.Spent.ii.That the Tribunal vacate/set aside and/or varies the orders given on 20th September, 2022, dismissing the suit and thereon consequently reinstate the suit- allowediii.Costs will be in the cause.iv.Mention to fix matter for hearing on 21/1/2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk MutaiNo appearance by parties.Ruling delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024