[2025] KECPT 326 (KLR)

Star Shuttle Sacco Society Limited v Nguli (Tribunal Case 396 of 2019) [2025] KECPT 326 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KECPT 326 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 396 of 2019

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

June 12, 2025

Between

City Star Shuttle Sacco Society Limited

Claimant

and

Bernard Munyao Nguli

Respondent

Ruling

1. The Notice of Motion dated 18th September, 2024 seeks among others:1. Spent2. That pending the inter-parties hearing of the Application, there be a stay of execution of the judgment and decree entered by the Honourable Tribunal on the 19th September, 2019. 3.That the Honourable Tribunal be pleased to set aside and vacate the Orders issued on the 13th September 2024 by Hon. Janet Mwatsama dismissing the Application dated 12th July, 2024 for want of prosecution and have the same reinstated for hearing on the merits.

2. The Application was supported by the affidavit of Mmbifwa Faith on the grounds that:i.That the Application was dismissed on 13th September 2024 by Hon. Janet Mwatsama for non-attendance and want of prosecution.ii.That the same was slated to come up for Notice of Motion on 13th September 2024, and on the very day the Application was slated for Hearing, my Advocate was in session but experienced network challenges hence when the matter was called she tried to unmute but her mic was not working, she logged out of the session and when she tried to log back in she experienced network challenges thus could not log in on time.iii.That when my Advocate managed to log back into the session the matter had already been called hence unable to make it in time for the hearing of the case, and after the call over she sought for the Honourable court’s intervention where she was informed that she should follow up with the registry to acquaint herself with the directions earlier issued by the court.iv.That my advocate later discovered that the Application had been dismissed for want of prosecution.v.That it would be great injustice to deny the Respondent an opportunity to pursue his rights and have his case determined on merit while upholding the principles set out by the Constitution.vi.That Consequently, the Respondent stands to suffer irreparably if the Application is not allowed while on the other hand, the Claimant shall suffer no prejudice or loss if the Application is allowed.vii.That the unfortunate network challenges of the Advocate should not be visited upon the Respondent.viii.That the dismissal was against the Respondent’s intentions and that the Respondent is desirous and has always been at all times willing and ready to prosecute the Application to its logical conclusion.ix.That the mistake of the Advocate on record should not be visited upon an innocent litigant.x.That it is therefore in the interest of Justice that the Application be allowed as prayed.

3. This Honourable Tribunal on 20th September, 2024 gave directions for the Application to be served, with the Respondent given 14 days to respond.

4. The Claimant through their Treasurer David Mugo filed a Replying Affidavit dated 21st January, 2025 Stating among others:1. That the Application lacks merit and bad in law ab initio for the reasons that the Respondent’s advocate has not cited provisions of the law under which the application is premised.2. That the Application is an abuse of the court process and ought to fail for the reasons given for reinstatement are unsatisfactory and unfounded. The respondent advocate has not given cogent reason for the non-attendance.3. That the Respondent advocate conduct is clear that she is not keen, neither is she interested to prosecute the Application filed on 12th July 2024, yet she is well aware of the existence of default judgment.4. That if the Respondent’s advocate was vigilant, she would have reached out to the Claimant’s advocate informing him of her predicament and subsequently requests for the file to be placed aside as she fixes her network challenges. Equity aids the vigilant and not the indolent.5. That from the onset, the record would show that the Respondent has not been fast tracking the case and even the subsequent Application.6. That litigation must be expedited and concluded by parties who come to court for seeking justice. Justice delayed is justice denied.7. That the suit is not meritorious and ought not to be reinstated as the Claimant is and continues to be prejudiced by the pendency of this claim and subsequent applications filed by the Respondent which are hindering the Claimant from enjoying the fruits of their judgment.

5. This Tribunal on 5th February, 2025 further made Orders for the Application to be canvassed by way of written submissions.

6. The Respondent filed their submissions dated 10th March, 2025 stating among others:i.That their case relies on Article 50 (1) of the Constitution that is clear that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.ii.That Article 159 (2) is also clear that in exercising judicial authority, the courts and tribunals shall be guided by the principles that justice shall be done to all irrespective of status, and that justice shall not be delayed, and lastly that justice shall be administered without undue regard to procedural technicalities.iii.That the Respondent’s suit did not meet the legal standard to warrant a dismissal for want of prosecution in accordance with Order 17 Rule 2 of the Civil Procedure Rulesiv.That no Application was made by the Claimant seeking the suit to be dismissed for want of prosecution and if any, none was served upon the Respondent. If at all there was any delay in prosecuting the suit then it is the Respondent’s position that the same is not inordinate as the dismissed Application had been filed 2 months prior to its dismissal.v.That the Respondent will suffer damages and injustice if the case is not reinstated for inadvertent mistakes on the part of the advocate which should not be visited upon the Applicant as the Respondent herein will proceed with execution and yet the Applicant did not participate in the suit.

7. The Claimant filed their submissions dated 11th April, 2025 stating among others:i.That despite there being express provisions of the law on a cause of action brought before the Honorable Tribunal through the Application, the Respondent did not cite the same provisions in the Application. Litigants should cite the relevant provisions of the law, failure to cite relevant provisions, especially from the Civil Procedure Rules, is a classic example of poor drafting of pleadings and lack of attention to detail.ii.That the legal substratum for dismissal of suits for want of prosecution is founded on the principles that litigation must be expedited and concluded by parties who come to court for seeking justice to assist in clearing backlogs in courts under the ever-increasing overloads to restore the bad public confidence and trust on the judiciary.iii.That upon filing of cases, parties should efficiently and effectively be seen to fast track their hearing and determination. There should be no delay at all based on the legal maxim justice delayed is justice denied and should there be any delay arising from one substantive and justifiable logical cause or reason, the same should not be inordinate, unreasonable and inexcusable.iv.That the power to dismiss a suit for want of prosecution is at the discretion of the Honorable Court.v.That both the Respondent and his advocate have demonstrated inexcusable laxity in prosecuting the case, and not only on the material date but on other dates.

8. We have considered the Application, the response and submissions filed and the only question remaining for determination is as to whether we should set aside and or vacate our orders of 13th September, 2024.

Should this Tribunal set aside and or vacate its Orders of 13th September, 2024? 9. Before we consider whether we should set aside and or vacate our orders of 13th September, 2024 we need to look at the history of this case and the environment created by both the Claimant and the Respondent to prosecute the case.

10. This case goes way back to 2019, and default judgement was entered in favour of the Claimant in 2019 when the Respondent failed to enter appearance and file a Defence. It took the Respondent another 5 years to apply for stay of execution and decree through the Application of 12th July, 2024, an Application that he also failed to prosecute on the day it was slated to be heard (13th September, 2025).

11. The conduct of a party seeking to set aside a judgment order is primarily governed by the Civil Procedure Rules, particularly Order 10, rule 11 and Order 12, rule 7. Order 10 provides the consequences of non-appearance after being served with a Memorandum of Appearance; failure to file a Defence after being served with a Memorandum of Appearance and failure to serve a Memorandum of Appearance and Plaint, while Order 12 provides the procedure to be adopted in circumstances where the Respondent has entered appearance and filed a Defence and the consequences of non-attendance by either the Plaintiff or the Respondent.

12. Section 1A of the Civil Procedure Act enacts the overriding objective of the Civil Procedure Act and the Rules thereunder which is to facilitate the just, expeditious, proportionate, and affordable resolution of the civil disputes governed by the Civil Procedure Act. The text states thus:(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an Advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.”

13. Section 1B of the Civil Procedure Act enacts the duty of the Court in respect to the overriding objective which is to handle all matters presented before the Court with a view of attaining a just determination; efficient disposal of the business of the Court; efficient use of the available judicial and administrative resources; timely disposal of the proceedings at a cost affordable by the respective parties; and use of suitable technology. The text reads thus:(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.”

14. The main concern of this Tribunal is to do justice to the parties, and having looked at Order 10, rule 11 and Order 12, rule 7 which gives this Tribunal the power to set aside its directions of 13th September, 2024 on just terms, we are not persuaded that the threshold for setting aside has been met. First, we are not persuaded that the directions were given irregularly. Second, we are also not persuaded that there was some mistake or error with our directions that need a re-look. Third, we are not persuaded that the Respondent has raised triable issues that require the reinstatement of the suit even if we were to readmit the Application of 12th July, 2024. Fourth, we see lack of good faith on the part of the Respondent in prosecuting and concluding this case given that this is a 2019 matter. Litigation has to come to an end at some point. In this particular matter, we are not persuaded that after more than 6 years, we should still keep this matter running as a result of the reasons the Respondent has given.

15. Final Orders

16. The Notice of Motion Application dated 18th September, 2024 is dismissed with costs.

17. File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 12. 6.2025HON. BEATRICE SAWE - MEMBER SIGNED 12. 6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 12. 6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 12. 6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 12. 6.2025HON. P. AOL - MEMBER SIGNED 12. 6.2025Tribunal Clerk MutaiWambui advocate holding brief for Mr. Wachira advocate for the RespondentMmbifwa advocate for the Claimant – No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 12. 6.2025