[2023] KEHC 25559 (KLR)

Nabongo Sacco Society Limited v Mzee (Civil Appeal E066 of 2021) [2023] KEHC 25559 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25559 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E066 of 2021

PJO Otieno, J

November 17, 2023

Between

Nabongo Sacco Society Limited

Appellant

and

Mbwana Omenda Mzee

Respondent

(Being an appeal from the Ruling and Order of Hon. Kimemia, Hon. J. Mwatsama and Hon. B. Ausala in Kakamega Co-operative Tribunal Claim No. 120 of 2020 dated 8th December 2021)

Judgment

1. This appeal attacks the decision of the Co-operative Tribunal dated 8/12/2021 by which it committed the Appellants to civil jail for a period of thirty (30) days.

2. That decision was a determination of two matters. The first matter was an oral application for review seeking to upset the orders of 6. 12. 2021 and the second was Notice to show cause why the officials would not be committed to civil jail.

3. The Petition of Appeal (sic) lists a whooping eleven (11) grounds of appeal against that decision. All the grounds essentially fault the trial Court for dismissing the application on a date it was only due for Mention, thus denying the Appellant’s the right to urge it when the same was not opposed and the right to defend the suit and in committing the Appellant’s officials to civil jail on a day the matter was only due for Mention.

4. The Court directed that parties file and exchange Submissions but as I prepare this decision only the Appellant has filed Submissions. I have gone through those Submissions and taken note of the position of the law advanced as applied to the facts.

5. While the Tribunal is painted to have been harsh and cruel to the Appellant and its officers, the record of the file paint a different picture. A summary of the events in the file would suffice here.

6. There is evidence by way of an Affidavit of Service that claim and summons to enter were duly served upon the Appellant on the 11. 3.2020. By the 21. 9.2020 when no appearance or defence had been filed, a request for Judgment was made to the Court and a default Judgment (the record anomalously calls it summary Judgment) was entered on the same day. Thereafter a notice of entry of Judgment issued on 10. 3.2021 after the decree and certificate of costs had issued on November 2020.

7. Execution was then applied for by way of notice to show cause and the notice was issued on 10. 3.2021 and served on the 3. 5.2021. It must be that notice that woke the Appellant up because on 12. 9.2021, a Notice of Motion dated 9. 9.2021 was filed seeking to set aside the default Judgment, stay and of execution and lifting of the warrants of arrest, as well as an order that the Appellant be allowed to appoint an Advocate to act for it.

8. Two days later the matter was placed before the Tribunal in the presence of the three officials but in the absence of the Counsel. It appears that instead of being arrested the police called the three, released them on cash bail and advised them to attend court. The Court on its part summoned the three to appear before it the next day. On that day Counsel attended with the officials. The decree holder also attended and complained that the Appellant was delaying the matter and that he had not filed a response because he had not been served. It was thus ordered that the application be served on the decree holder who was given fourteen (14) days to file a response. The warrants of arrests and summons were suspended till the 3. 11. 2021 for Mention for further orders.

9. The next event of relevance was on the 6. 12. 2021, a date taken by the Appellant’s Counsel for Mention, in the absence of the Respondent. On that day, only the decree holder attended. Not even the officials were present in Court. The decree holder then reiterated his complaint that the Appellants were delaying the matter and the Court having noted that the date was taken by the Appellant, dismissed the application seeking setting aside for want of attendance and directed that execution proceeds.

10. The matter was next in Court the next day when the three officials attended. It is not clear how they came to court and how the file landed before the Tribunal, but the matter was postponed to the next day to enable them give a proposal on settlement.

11. It was on 8/12/2021 that Counsel attended and in the presence of the Respondent, but not that of the officials, and sought that the dismissal order of 6. 12. 2021 be reviewed. His ground was that he was away in Busia and did not attend Court because he did not think that the matter would be dismissed. He then told the Tribunal that his clients had the right to be heard and that committing the officials to civil jail will not help the matter.

12. On his part the Respondent urged that the officials show cause why they could not be committed to civil jail. He expressed preparedness to pay their subsistence while in Prison.

13. It is the proceedings of 8/12/2021 which yielded the decision appealed against. That decision dismissed the oral application for review and committed the officials of the Appellants to civil jail.

14. To this Court, since the introduction of Sections 1A and 1B of the Civil Procedure Act, fourteen (14) years ago, there is now coded an obligation upon Counsel and his Client to help the Court advance its overriding objectives by participation in court process and complying with every directions and orders by the Court.

15. Here even though the date 6. 12. 2021 was taken by Counsel in the presence of his clients, none of them attended court when directed to attend for Mention. In doing so the Counsel and client abdicated duty to court. It is not upon Counsel to chose when to attend or not attend court and expect to hold the Court at ransom.

16. When the Court allocates its time for a matter, the expectation is that the attendance works to progress the matter. The days when Mentions were routine for other dates to be taken without move are long gone. In a matter liked this where there was a default Judgment and the Appellant had offered to file a statement of accounts but had not done, a purposive Mention was capable of narrowing down the matter and moving the matter forward.

17. That the Counsel and Client chose not to attend court was a good reason for the Tribunal to proceed the way it did. It cannot be the reasons to upset the decision thus made merely because the order was made on a Mention date. To say so would be tantamount to saying that a party can lead Court to commit its time, fail to attend but the Court is expected to merely fold its hands and adjourn the matter without more. The day when such was acceptable are long gone. We are in the day of judicial accountability where it counts how long a matter takes in Court. The Court therefore finds no fault with the Tribunal when it said in its Ruling that: -“…Rules 3 and 4 of the Co-operative Tribunal Practice and Procedure Rules (2009) guides this Tribunal to make orders to prevent abuse and we use this discretion not to be bound by technicalitiesThe Application being made at this hour is made in bad faith. Equity aids the vigilant and not the indolent.The claimant (Judgment/Creditor) has been consistent in following up his case.”

18. The appeal on that limb is thus dismissed for reasons that the Tribunal was entitled to hold as it did that its process was being subjected to abuse.

19. On the notice to show cause, the officials had been released by court to attend Court and show cause. After their application in which they had obtained a reprieve had been dismissed, it behoved them to attend court and show cause. There is no record that they did attend court on 8/12/2021 when their Advocate asked court to review its orders of 6. 12. 2021. The Court takes it once again that they gave to themselves the right to determine when to attend court and thus denied themselves the right to show cause. That position was compounded by the fact that since 15. 10. 2021 they had been directed to file a statement of account but they had not.

20. I read the decision by the Tribunal to be a statement of disapproval of the conduct of the Appellant. While it is the law that every party has a right to be heard, it is upon such a party to seize the opportunity when granted. It is not for the Court to coerce a party to attend court for purposes of being heard. Here, I find that the Appellant’s officials were given the chance to show cause but they decline to do so.

21. For that reason, there is no basis to interfere with tm he decision by the Tribunal.

22. In conclusion, the entire appeal is adjudged to have no merit and is thus dismissed with costs.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 17TH DAY OF NOVEMBER, 2023. PATRICK J. O. OTIENOJUDGEIn the presence of:Mr. Wandala for the AppellantThe Respondent in personCourt Assistant: Polycap Mukabwa