[2024] KECPT 951 (KLR)

Simba v Rianga (Tribunal Case 255 of 2020) [2024] KECPT 951 (KLR) (27 June 2024) (Ruling)

Neutral citation: [2024] KECPT 951 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 255 of 2020

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

June 27, 2024

Between

Sosmas Mobagi Simba

Claimant

and

Carolyne Nyanduko Rianga

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. The Notice of Motion Application is dated 15th March, 2023 and was filed on 18th September, 2023 pursuant to Orders 12 Rule 17, Orders 51 Rules 3 and 15 of the Civil Procedure Rules and Section 3A and 63 (e) of the Civil Procedure Act seeking that the Statement of Claim dated 11th August, 2020 that was filed on 25th August, 2020 and dismissed on 22nd July, 2021 be reinstated by setting aside the orders that dismissed it to enable the claim be heard and determined on merit.

2. The Application is based on the grounds that:a.That the suit was dismissed in the Plaintiff’s absence and the absence of his advocate.b.That the failure to attend court on the day the suit was dismissed was not intentional but for the fact that his previous advocate on record did not inform him that the suit was slated for dismissal.c.That he has legitimate claim against the Respondent which raises very serious triable issues, which are highly merited and has overwhelming chances of success.d.That he will be condemned unheard against the dictates of Article 159 (2) (a) and (d) of the Constitution.e.That he is desirous to have this claim heard and determined on merit as the Respondent owes him Kshs. 232,792. 23/=.f.That he will suffer immense and irreparable loss and no prejudice will be suffered by the Respondent if the orders he is seeking is granted.g.That it will be just and equitable and in accord with the tenets of natural justice if he is given his day in court.

3. The background of the Application is that the Plaintiff and the Respondent were members of Gusii Mwalimu Sacco and in around November 2016 Plaintiff among many others guaranteed the Respondent a loan of Kshs. 2,600,000/= which she defaulted on paying resulting in Gusii Mwalimu Sacco deducting a sum of Kshs. 232,72. 23/= from the Plaintiff’s deposits to offset the loan.

4. That the Respondent became evasive in reimbursing the amount deducted resulting in the filing of this claim on 25th August, 2020. The Respondent on her part claims that she is not evasive and would have paid the amounts deducted if her contract would have been renewed, and the failure to renew the contract caused her economic hardships as she was relying on her salary to service the loan. According to the Respondent, the termination of her employment was not contemplated and that the loan was initiated and anchored on her employment, and that she has filed a case related to her termination of employment ELRC Petition No. 15 of 2020 that is still pending.

5. It is also the Respondent ‘s position that this claim was dismissed for want of prosecution as a result of prolonged and in excusable delays by the Plaintiff in setting set aside the orders that dismissed the claim will occasion grave injustice on her end.We have considered the pleadings and submissions filed and the only question remaining for determination is as to whether we should set aside orders dismissing the claim and reinstitute the claim to be heard and determined on merit.SETTING ASIDE ORDERS DISMISSING A CLAIM AND REINSTITUTING A SUIT TO BE HEARD AND DETERMINED ON MERIT.

6. A section 3A of the Civil Procedure Act gives Tribunal wide discretion over matters and issues before it, including the question as to whether it should or should not reinstitute a suit dismissed on account of unreasonable delay on the part of any party or parties to prosecute it.The factors taken into account to help in determining whether a suit should be reinstated or not were addressed by Chesoni J. in Ivita versus Kyumbu [1984]KLR 441 where he stated that:“The test is whether the delay is prolonged and inexcusable, and if it is, can justice be done despite such delay. Justice is justice to both the plaintiff and the Defendant; so both parties to the suit must be considered and the position of the judge too, because it is not easy task for the documents, and/or witnesses may be missing and evidence is weak due to the disappearance of human memory resulting from lapse of time. The Defendant must however satisfy, the court that it will be prejudiced by the delay or even that the Plaintiff will be prejudiced. He must show that justice will not be done in the case due to the prolonged delay on the part of the Plaintiff before the court will exercise its discretion in his favour and dismiss the action for want of prosecution. Thus even it delay is prolonged if the court is satisfied with the Plaintiff’s excuse for the delay, the action will not be dismissed but it will be ordered that it be set down for hearing at the earliest available time”.

7. In as much as the judiciary , this Tribunal included, is under a lot of pressure from backlogs and increased filing of new cases, we have considered the facts and evidence submitted in this case so far including the fact that the Respondent has not controverted the evidence that the Plaintiff lost his deposits when she failed to service a loan that the Plaintiff and others had guaranteed her, and upto today she is yet “even in pretence” to show some concern in reimbursing the Plaintiff the amount he lost. It is our position that justice is justice, and it must be seen to be done to both the Plaintiff and the Defendant, and this Tribunal is guided by the laws of equity which are clear that for one to demand justice, they must also be seen to be doing justice. This Tribunal is not convinced so far that the Respondent is doing justice to the plaintiff and to fail to re-institute this suit so that it is determined on merit will not be just as the amount owed to the Plaintiff, the sum of Kshs. 232,792,23/= will not have been addressed.

FINAL ORDERSi.The Notice of Motion Application dated 13th March, 2023 and filed on 18th September, 2023 is allowed as prayed.ii.The orders issued on 22nd July, 2021 dismissing the Statement of Claim dated 11th August 2020 and filed on 25th August, 2020 are set aside.iii.The Statement of Claim dated 11th August, 2020 and filed on 25 th August, 2020 is reinstated for hearing and determination on merit.iv.Mention for directions on 22. 10. 2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2024. Hon. B. Kimemia Chairperson Signed 27. 6.2024Hon. J. Mwatsama Deputy Chairperson Signed 27. 6.2024Hon. Beatrice Sawe Member Signed 27. 6.2024Hon. Fridah Lotuiya Member Signed 27. 6.2024Hon. Philip Gichuki Member Signed 27. 6.2024Hon. Michael Chesikaw Member Signed 27. 6.2024Hon. Paul Aol Member Signed 27. 6.2024Tribunal Clerk JonahMs. Kwamboka advocate holding brief for Mose Nyambega advocate for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 27. 6.2024