[2025] KECPT 332 (KLR)

Newfortis Sacco Society Limited v Gatangi (Tribunal Case 497 of 2018) [2025] KECPT 332 (KLR) (26 June 2025) (Ruling)

Neutral citation: [2025] KECPT 332 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 497 of 2018

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

June 26, 2025

Between

Newfortis Sacco Society Limited

Claimant

and

Joseph Gachagwa Gatangi

Respondent

Ruling

1. The Notice of Motion Application dated 21st May, 2024 is brought under Article 50 of the Kenyan Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act and Sections 78 and 79 of the Cooperatives Societies Act Cap 490 and Orders 12 Rule 7 of the Civil Procedure Rules seeking among others orders:1. Spent2. That the Honourable Tribunal be pleased to grant a temporary order of stay of execution of the decree of the Tribunal pending hearing and determination of the Application3. That the Honourable Tribunal be pleased to set aside the Order of 18th April 2024 dismissing the Respondent's Application dated 22nd May 20234. That the Honourable Tribunal be pleased to make an order reinstating the Respondent's Application dated 22nd May 2023 for hearing and determination.

2. The Application was supported by the annexed affidavit of the Respondent on the grounds that:i.The suit was heard ex-parte on the 4th May 2023 closed and judgment granted on the same date in favour of the Claimant.ii.The Respondent's advocates on record Mr. Moriasi walked into the court and found the case had been heard and finalized forcing the respondent to file an application dated 22nd May 2023 for setting aside and for fresh hearing inter-partes.iii.The court fixed the matter for inter-partes hearing of the Application for the 21st June 2023 when the Application was stood over to the 22nd November 2023 and on the Application of the Respondent/Claimant it was stood over to the 18th April 2024 for response and submissions.iv.The Claimant/Respondent once again never filed the response as ordered hence the applicant was unable to file the submissions in time as ordered by the court. On the 18th April 2024 the Application came up for mention to confirm compliance with the directions of the tribunal however in the absence of the advocate for the applicant the application was dismissed albeit irregularly.v.The reasons for failure on the part of the advocate to join the online virtual mention was system failure and on joining later he was referred to the registry for directions.vi.The advocate called his colleague Mr. Modi who informed him that the matter was mentioned earlier and orders granted dismissing the application for want of prosecution yet the matter was coming up for mention.vii.The failure to attend court in the virtual session was not deliberate but was due to the failure of the advocate and the same is excusable.viii.The applicant will suffer irreparably unless the orders of 18th April 2024 are set aside by the Honourable Tribunal.

3. This Tribunal later gave orders for the Application to be served, and the Claimants through their Chief Executive Officer John Mathinji filed a Replying Affidavit dated 2nd August, 2024 stating among others:a.That the contents of the Supporting Affidavit are not true, are vexatious and scandalous, and that the loan outstanding was proven and as such judgement was entered properly.b.That what the Respondent had filed were mere denials to the claim and rightfully failed, as the Respondent did not even file a witness statement or documents.c.That the Application has been filed 1 year later after dismissal of the same Applicationd.That the Application is misconceived as the Respondent is indebted to the Claimant.e.That the Respondent’s intention is just to delay the realization of the decretal sum

4. This Tribunal further gave directions for the Application to be canvassed by way of written submissions, and the Respondent filed his submissions dated 22nd November, 2024 stating among others:i.That the Applicant has good grounds for the failure to attend the Tribunal’s proceedings on the 18th April, 2024 as his advocate system had issues and he could not be let into the Tribunal’s virtual platform in time, and by the time he was let in, the case had been called out and orders issued.ii.That an Application cannot be dismissed on a mention dateiii.That the Application has merit to warrant the court interfering with its order of 18th April, 2024

5. The Claimant on their end filed their submissions dated 20th January 2025 stating among others:I.That on 13th December, 2022 the Honourable Tribunal gave directions for both parties to avail all witnesses for a physical hearing on 4th May 2023. That on the 4th May, 2023 the advocate for the Respondent failed to attend court and judgement was entered in favor of the Claimant. That the Respondent on 22nd May 2023 filed an Application seeking the same orders as the one dated 21st May, 2024. II.That the Application seeks similar orders as the one in the previous application that was heard and dismissed, and that offends the provisions of Section 7 of the Civil Procedure Act.III.That the Application lacks merit, is incompetent and made without good faith and with non-excusable delay

6. We have considered the Application and the only question remaining for determination, is as to whether we should exercise our discretion to set aside our order of 18th April, 2024.

Should the Honourable Tribunal exercise its discretion to set aside its orders of 18th April, 2024? 7. Setting aside of court orders are acts of discretion. In Kiriisa v Attorney-General and Another [1990-1994] EA 258, the Supreme Court of Uganda define discretion to mean:the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable and reasonable in those circumstances.”

8. In Kenya, where Courts are allowed to exercise their discretion, they do so judiciously in a just and fair manner to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.

9. In Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193, the Court of Appeal held that:.…A judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed..”

10. In Shanzu Investments Ltd v Commissioner of Lands [1993] eKLR, the court delivered itself thus:.…The jurisdiction to vary judgment being a judicial discretion should be exercised judicially; and, as is often said, whether judicial discretion should be exercised or withheld in a party’s favour, depends, on a large measure, on the facts of each particular case. The tests for the exercise of this discretion are these: - First, was there a defense on the merits? Secondly, would there be any prejudice? Thirdly, what was the explanation for any delay…”

11. In this particular case as we consider whether to exercise our discretion to set aside the orders of 18th April 2024, we have looked at the conduct of the parties (both the Claimant and the Respondent) while being alive to the age of the suit and whether triable issues have been raised that make it necessary to have a hearing if we set aside the orders, and we are not persuaded that it is just and fair to the Claimant to set aside the orders, as they have waited from 2018 (8 years) to have the suit determined. The Respondent has deliberately delayed the determination of this suit, while at the same time he has not filed in court documents that raise triable issues to persuades this Tribunal to exercise their discretion in his favour.

Final Orders 12. The Notice of Motion Application dated 21st May, 2024 is dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 6.2025HON. P. AOL MEMBER SIGNED 26. 6.2025Tribunal Clerk GechikoOjuoki advocate holding brief for Mr. Modi for the ClaimantAdvocate for Respondent – No appearanceFile ordered as closed.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 6.2025