[2023] KECPT 1039 (KLR)

Syanda v Uriithi Housing Cooperative Society Limited (Tribunal Case 157 of 2018) [2023] KECPT 1039 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1039 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 157 of 2018

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

November 30, 2023

Between

Benjamin Maundu Syanda

Claimant

and

Uriithi Housing Cooperative Society Limited

Respondent

Ruling

1. The Application before us for determination is the Claimant’s Notice of Motion dated 26th October, 2022, filed on 28th November, 2022. In the Application, the Claimant seeks for orders:1)Spent.2)Spent.3)That the Honorable Court be pleased to set aside the dismissed orders dated 20th September, 2022, reinstate the suit herein and set it down for pre-trial at the earliest opportunity to allow the parties the chance to be heard.4)That the costs be in the cause.

2. The Application is based on the grounds set out thereunder and is supported by the Affidavit of the Claimant sworn on 26th October, 2022. The grounds and the reasons for the Application stated on the face of the Application and the Supporting Affidavit among others are:1)The Respondent in their Defence admitted to receiving the monies claimed by the Claimant and were in the process of completing all agreements and they attempted an out of Court settlement with the Claimant, which did not materialize.2)That the Claimant had an actionable Claim against the Respondent and stands to lose Kshs. 1,200,000/= if not given the chance to prosecute the Claim.3)That this is a procedural Application under Order 9 Rule 9 of the Civil Procedure Rules.4)That the Claimant has a proper cause of action but since he was acting alone, he had serious challenges understanding the court process and was not in court when the matter came up for dismissal on 20th September. 2022. 5)That it is in the interest of justice that the Application is allowed and the Respondent shall not suffer prejudice should it be allowed.

3. The Claimant’s Application was opposed by the Respondent vide Grounds of Opposition dated 9th March, 2023 and filed on 4th April, 2023. The said grounds:1)That the Claimant was present in court when the case was fixed for hearing on 24th October, 2019. 2)That on 24th October, 2019, the Tribunal was not sitting and the Claimant was not present in court to fix the matter for hearing.3)That this matter fixed for hearing on 16th March, 2020 by consent of parties, but it did not proceed on that day due to Covid-19 pandemic measures.4)That from 16th March, 2020 to 20th September, 2022, the Claimant did not fix the suit for hearing anf it was dismissed by the Tribunal for want of prosecution.5)That no plausible reason and/ or explanation has been given by the Claimant why he did not fix the matter since March, 2020. 6)That the Respondent will be prejudiced by the delay in hearing and determination of this suit as the same will add costs of litigation on the part of the Respondent.7)That should the Tribunal reinstate the suit, the same should be done on condition that the Claimant pays the Respondent thrown away costs of Kshs. 30,000/=

4. Parties agreed to proceed by way of Written Submissions. The Claimant’s Submissions dated 19th July, 2023 were filed on 23rd July, 2023. The Respondent’s Submissions are dated 8thSeptember, 2023.

The Claimant's case 5. In his submissions, the Claimant reiterates the contents of the Application and Supporting Affidavit, and comes up with two issues for determination being:i)Whether the Court should reinstate the suit herein and set it down for hearing.ii)What should be the direction of the court at this stage.

Issue One1. On whether the court should reinstate the suit and set in down for hearing, the Claimant submits that the Application is brought under Order 12 Rule 6 as read with Order 17 Rule (2)(6) of the Civil Procedure Rules2010; that the suit was dismissed for want of prosecution after it was listed for Notice to Show Cause under Order 17 Rule 3 of the Civil Procedure Rules; that indeed the Tribunal dismissed the suit under Order 12 Rule 1 of the Civil Procedure Rules which is Applicable when neither party attends on the day fixed for hearing; and that on the said 20th September, 2022, both parties failed to attend court and it is unfair to condemn the Claimant only when parties are bound by court process.The Claimant submits further that since the dismissal was pursuant to Order 12 rule 6, he is entitled to apply for reinstatement of suit by virtue of Order 12 Rule 6. That the Claimant acting in reason was not aware of court process and inadvertently filed to attend court on 20th September. 2022; that he was never served with the said notice.

Issue Two2. On the issue of what should be the directions of the Tribunal, the Claimant submits that the Respondent opposed the Application not on grounds that the Claimant failed to attend court but on the grounds that the Claimant did not attend court and should pay costs of Kshs. 30,000/= and yet they also failed to attend court on 22nd September, 2022; that the Respondent has not denied owing the Claimant. Further submits that the most reasoning orders is to reinstate the suit and set the same down for hearing; since both parties had complied with pre-trial directions; that the Tribunal do reinstate the suit with no order as to costs; and set it down for hearing on a priority basis.

Respondent's Case 6. In its Submissions, the Respondent brings forth only one issue for determination, that is; whether the dismissal order should be set aside and the suit be reinstated. The Respondent reiterates the contents of its Grounds of Opposition and submits that the case was mentioned severally between the year 2018 and 2nd July, 2019; that it was fixed for hearing on 24th October, 2019 when the Claimant was present in person but the Tribunal did not sit and the Claimant did not avail himself for fixing another date; that the case was fixed for hearing on 16th March, 2020 by consent of parties; on which date the case did not proceed due to Covid-19 pandemic measures.

7. The Respondent further submits that after 16th, March 2020, the Claimant did not fix the case for hearing and on September, 2022, the Tribunal gave Notice to the parties pursuant to Order 17 Rule 1 of the Civil Procedure Rules, 2010, to show cause why the suit should not be dismissed for want of prosecution; that the Notice to Show Cause was fixed for hearing on 20th September, 2022 when the Claimant did not appear to show cause, hence the dismissal for want of prosecution.

8. The Respondent further submits that the Claimant has not tendered any explanation why he did not fix the case for hearing since March, 2020; that no plausible excuse and/or explanation has been given for the two years’ delay period to warrant the Tribunal to exercise its discretion in favor of the Claimant and the Application should be dismissed; that the Claimant is an indolent litigant; that reinstatement of suit would be prejudicial to the Respondent as it will add costs of litigation; that should the case be reinstated, the same should be on condition that the Claimant pays the Respondent thrown away costs of Kshs. 30,000/=

Analysis and Determination1. It is not in dispute that the Claimant was acting in person from the onset pf his Claim against the Respondent.

2. It is also not in dispute as can be ascertained from the record that there were several mentions culminating on the one on 2/7/2019 and finally a hearing date was fixed for 24th October, 2019.

3. It is also not in question that the parties attempted settling the matter out of court and that on the 2nd of July, 2019, the hearing date was fixed amid ongoing negotiations pending settlement.

4. From the record, it is evident and we confirm that the hearing date of 16th March, 2020 was taken by consent of the parties

5. What is not clear to us is why the Claimant did not take any steps to set the case down for hearing after.

6. We do not agree with the Claimant’s contention that the dismissal was pursuant to the provision of Order 12 Rule 6 of the Civil Procedure. Dismissal of a case under Order 12 Rule 6 is on account of non-attendance on a date fixed for hearing. From the record before us, it is clear that the Claim herein was dismissed for want of prosecution under Order 17 Rule 2(1) of the Civil Procedure Rules.

7. Order 17 Rule 2(1) of the Civil Procedure Rules, provides that; “in any suit in which no Application has been made or step taken by either party for 1 year, the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if cause is not shown to its satisfaction, may dismiss the suit.

8. The Notice to Show Cause herein was issued by the Tribunal after no step was taken towards its prosecution.

9. The Claimant has asserted that he was not served with the Notice to Show Cause, hence his failure to attend court on the 20th day of September, 2022.

10. We have examined the Affidavit of service on record and are satisfied that the Advocate for the Respondent was duly served with the Notice to Show Cause via EMS on 1st September, 2022. However, we are not satisfied that the Claimant was served with the notice to show cause, as per the receipt purportedly attached in proof of service by ordinary post, does not refer to the Claimant as the addressee.

11. Whether the Claimant has not provided in the present application sound reason why he did not fix the suit for hearing in the two years or so before it was dismissed, we find that he was not given the opportunity to appear and show cause on the 20th September 2022.

12. The Respondent’s Claim for thrown away costs is therefore not sustainable. 9. In the upshot, for the reasons above, we rely on the provisions of Rule 3 of the Cooperative Tribunal (Practice and Procedure) Rules 2009 and exercise the Tribunal’s unlimited inherent powers, and order as follows:1)The orders of dismissal of the Claimant’s claim made on 20th September, 2022 are hereby set aside and the claim is reinstated forthwith.2)The claim is hereby fixed for mention for taking Pre-trial direction on 18/4/2024. 3)Each party to bear its own costs of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE - MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 11. 2023HON. PAUL AOL - MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahMburu advocate holding brief for Opiyo advocate for the claimant/Applicant.Echon advocate holding brief for Mr. Mwangi for the Respondent.Ruling as delivered.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023.