[2022] KECPT 166 (KLR)

Mugambi v H & M Cooperative Savings & Credit Society Limited & 4 others (Tribunal Case 287 of 2021) [2022] KECPT 166 (KLR) (Civ) (10 May 2022) (Ruling)

Neutral citation: [2022] KECPT 166 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 287 of 2021

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

May 10, 2022

Between

James Gichuki Mugambi

Claimant

and

H & M Cooperative Savings & Credit Society Limited

1st Respondent

Gray Mwamunye

2nd Respondent

Nancy Mwamkuu

3rd Respondent

Mary Thuku

4th Respondent

Lucy Muchiri

5th Respondent

Ruling

1. The matter comes up today for hearing of the claim as directed by this Tribunal on 5th of April 2022. The directions were taken in the presence of all parties as follows: Mr. Muriuki for Claimant

Luvai Ms. Holding brief for Madila Advocate (5th Respondent)

Mr. Kigode holding brief for Agimba Advocate for 1,2,3 and 4th Respondent.

2. Matter was filed under Certificate of Urgency, this Tribunal preferred directions cognisant of the foregoing.All parties were in agreement for the matter to proceed at the earliest and in Kakamega, being the earliest date available.The proceedings are clear on the above, and we shall dwell not thereto.

3. On this day of the Lord, counsel for the Respondent jointly and severally seeks Mr. Mulama to hold their brief to seek for an adjournment, citing various reasons, which this tribunal can summarize as follows:1. Witnesses for the 1st Respondent are conducting an interview and as such they are unavailable.2. Third witness is on emergency leave.Nothing has been stated about to fourth witnesses, as it was indicated that the Respondent would …him reliance on evidence of 4 witnesses.Mr. Muriuki for the Claimant objected the Application for adjournment on grounds that:a.Court orders precede the interviews by the 1st Respondent.b.There is no resolution to recruit, and this excuse on a falsehood.c.Dates were taken by consent of parties, no objection was raisedd.Letter by 1st,2nd,3rd, and 4th is dated 9. 05. 2022 when the Claimants were already on their way to Kakamega.This Tribunal has considered submissions of all parties, and finds as follows:a.Court orders and directions are compulsory. They are not to be disobeyed wilfully, or countermanded arbitrarily.The directions issued by this Tribunal on 5. 04. 2022 were binding, and only cogent reasons would compel this Tribunal to excuse a party that has not adhered to them.b.The Respondent’s advocates have not given this Tribunal such compelling grounds to excuse their mis actions for the following reasons:i.Court orders take precedence over administration functions of the Respondents.That the 1st Respondent chose to make the witnesses skip court in order to conduct interviews is a telling revelation of a party utterly contemptuous of this Tribunal. Additionally, no document has been produced to confirm that indeed the witnesses are absent for good reasons.We therefore find that this reason is not satisfactory, and is flimsy at best. We thus reject it.ii.The 5th Respondent’s Counsel, in compounding the contempt, decided - unilaterally- to excuse the witness from attending court, after the said advocate not coming to court as well we shall say no more on that at this point.iii.Fair administration action as contemplated by our Constitution in Article 47 request that a process be fair and expeditious.Parties hereto were on agreement to this as they implored this Tribunal to issue a date on priority in Kakamega, on 5. 4.2022. This matter was filed under urgency, and it would behove of this tribunal to treat the case with the urgency and seriousness it deserves, contrary to what the Respondents are inviting us to do.iv.Professional courtesy would also behove of the Respondent to notify the other parties well in advance, unless there is an emergency. Interviews are not emergencies. Additionally, a witness being absent on “emergency leave” without information or evidence is not to be treated as such. Thus, by sending a letter dated 9. 5.2022 for a hearing slated for 10. 5.2022 when parties have had time from 5. 4.2022 is absolutely outrageous in the circumstances. We are not persuaded that the Respondents have acted in good faith in view of this.We reiterate that fair trial requires matters to commence and be heard expeditiously, for justice to be seen to be done. We thus find against the Application for adjournment and order that the matter proceeds as directed by this Tribunal on 5. 4.2022.

RULING SIGNED, DATED AND DELIVERED AT KAKAMEGA THIS 10TH DAY OF MAY, 2022. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 10. 5.2022MR. P. GICHUKI MEMBER SIGNED 10. 5.2022MR. B. AKUSALA MEMBER SIGNED 10. 5.2022TRIBUNAL CLERK R. LEWERI