[2024] KECPT 1681 (KLR)

Mugo v Bingwa Sacco Society Limited & another (Tribunal Case 210 of 2019) [2024] KECPT 1681 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1681 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 210 of 2019

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

October 31, 2024

Between

Roda Wamutira Mugo

Claimant

and

Bingwa Sacco Society Limited

1st Respondent

Quickline Auctioneers Limited

2nd Respondent

Ruling

1. The Notice of Motion Application dated 20th February 2024 is brought under Order 12 Rule 7 and Order 40 Rule 1 and 2 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act seeking among others orders:i.Spentii.That the Honorable Tribunal be pleased to revive/reinstate the suit which was dismissed for want of prosecution/non-attendance of partiesiii.That the Honorable Tribunal be pleased to order that the status quo be maintained regarding land parcel No. INOI/NDIMI/2255 pending hearing and or the determination of the Application or further orders of the Tribunal.

2. The Application was supported by the annexed Affidavit of Rhoda Wamutira Mugo which was based on the following grounds:a.That the 1st Respondent advanced to the Claimant a loan of Kshs 200,000 in 2009 and Kshs 300,000 on 23rd December 2011 and 25th January 2012. b.That the Claimant has since repaid the loan in full but the 1st Respondent has now instructed M/S MAGEE LLP to issue a demand letter dated 20th October 2023 seeking an outstanding sum of Kshs 818,079. 50c.That the current matter was marked as closed on the 25th May, 2021 due to non-attendance of parties.d.That the Claimant counsel who was on record then was Wangeshi Munene who has now joined the judiciary as a Magistrate.e.That no communication was ever made to the Claimant regarding the appointment to the judiciary or that her former advocate’s firm was dissolved.f.That it would be greatly unfair to condemn the Claimant unheard.g.That it would also be prejudicial to condemn the Claimant for mistakes which are not hers.h.That in the interest of justice the Application to revive/reinstitute the suit should be allowed since the Claimants now has a new counsel on record and is ready to prosecute the matter expeditiously.i.That if orders do not issue the Claimant will suffer irreparable damage and subsequently lose her land parcel No. INOI/NDIMI/2255

3. This Tribunal on 21st February 2024 gave directions for the application to be served on all the parties and on 22nd April 2024 the 1st Respondent filed grounds of opposition to the Application stating among others that:i.No good reason has been given to explain the prolonged delay in approaching the Tribunal.ii.the Claimant had a duty as a litigant to follow up with her case and that duty cannot be subrogated to any other party.iii.The Claimant’s previous Advocate was appointed as a Magistrate on 18th November 2021, 5 months after the case was marked as closed, and as such, the Claimant therefore had an Advocate on record all through to the time that the matter was marked as closed.iv.That the matter was not dismissed for want of prosecution hence the Application is based on incorrect facts.v.The matter having been marked as closed cannot be revived by way of reinstatement.vi.the Claimant having offered her land as security knew the consequences of her actions hence the allegations that she will suffer damage have no basis neither is the prayer for status quo merited.

4. This Tribunal on 13th May 2024 give further orders for the Application to be canvassed by way of written submissions. The Claimant filed her submissions dated 5th June 2024 stating among others that:i.Section 3A of the Civil Procedure Act gives the court wide discretion over matters and issues that are before it including the question as to whether that court or tribunal should reinstate a suit dismissed on account of unreasonable delay on the part of the parties to prosecute it.ii.The Tribunal should look into the reasons why the suit was dismissed in the first place to inform whether it should reinstate the suit.iii.The reasons for non-prosecution of the suit are valid as the Claimant was not informed or updated about every single date issued by the Honorable Tribunal by her former Advocate.

5. The 1st Respondent filed their submissions dated 2nd July 2024 stating among others that:i.No good reason has been given to explain the prolonged delay in approaching the Tribunal in that the matter was marked as closed on 25th May 2021 and the application for reinstatement has been made on 20th February 2024 which is over two years and nine months.ii.the Claimant had a duty as a litigant to follow up with her case and that duty cannot be subrogated to any other party. That what is demonstrable is the Claimant's deliberate failure to follow up with her case and that choice has its consequences.iii.The Claimant’s previous Advocate was appointed as a Magistrate on 18th November 2021, 5 months after the case was marked as closed, and as such, the Claimant therefore had an Advocate on record all through to the time that the matter was marked as closed.iv.That the matter was not dismissed for want of prosecution hence the Application is based on incorrect facts.v.The matter having been marked as closed cannot be revived by way of reinstatement.vi.the Claimant having offered her land as security knew the consequences of her actions hence the allegations that she will suffer damage have no basis neither is the prayer for status quo merited.

6. We have considered the Application and the written submissions filed and the only question remaining for determination is as to whether the reasons given are sufficient to reinstate the suits.

Are the reasons given sufficient to reinstate the suit? 7. The principles governing reinstatement of suits are well settled and captured clearly in the case of John Nahashon Mwangi v Kenya Finance Bank Limited (in Liquidation) [2015] eKLR where (Gikonyo J) stated as follows:“The fundamental principles of justice are enshrined in the entire Constitution and specifically in article 159 of the Constitution. Article 50 coupled with article 159 of the Constitution on right to be heard and the constitutional desire to serve substantive justice to all the parties, respectively, constitutes the defined principles which should guide the court in making a decision on such matter of reinstatement of a suit which has been dismissed by the court. These principles were enunciated in a masterly fashion by courts in a legion of decisions which I need not multiply except to state that; courts should sparingly dismiss suits for want of prosecution for dismissal is a draconian act which drives away the plaintiff in an arbitrary manner from the seat of judgment. Such act are comparable only to the proverbial ‘’sword of the damocles’’ which should only draw blood where it is absolutely necessary. The same test will apply in an application to reinstate a suit and a court of law should consider whether there are reasonable grounds to reinstate such suit-of course after considering the prejudice that the defendant would suffer if the suit was reinstated against the prejudice the plaintiff will suffer if the suit is not reinstated.”

8. The Tribunal is alive to the fact that re-instatement of a suit is a matter of discretion, which ought to be exercised judiciously. This tribunal has considered the circumstances under which the suit was dismissed and the issue of representation of the Claimant by her former Advocate and it is our considered view that given that the Claimant is on record that she has settled the loan in full, the subject of the claim, she should not be condemned unheard and as such this Tribunal will give her the opportunity to come fully on record and give evidence to that claim. It is also our considered view that no prejudice will be occasioned on the 1st Respondent as or when it arises that the loan has not been settled in full, they are still able to claim what has not been settled plus interest accrued.

Final Orders: 9. The Notice of Motion Application dated 20th February 2024 succeeds on the following prayersI.The suit is hereby reinstatedII.Status quo is maintained regarding land parcel No. INOI/NDIMI/2255 pending hearing and determination of the suitIII.Costs in the causeIV.Pre-trial directions on 6. 2.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE - MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI - MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 31. 10. 2024HON. PAUL AOL MEMBER - SIGNED 31. 10. 2024Tribunal Clerk MutaiKiplagat for 1st RespondentMwangi advocate holding brief for Kamuga advocate for Claimant/ApplicantHON. B. KIMEMIA - CHAIRPERSON SIGNED 31. 10. 2024