[2024] KECPT 216 (KLR)

United Star Sacco Limited v Njuguna (Tribunal Case 451 of 2016) [2024] KECPT 216 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 216 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 451 of 2016

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

March 7, 2024

Between

United Star Sacco Limited

Claimant

and

Antony Njuguna

Respondent

Ruling

1. The matter before us for determination is the Respondents Notice of Motion Application dated 27th June, 2023, brought under the Order 5 Rule 1, Order 12 Rule 7 of the Civil Procedure Rules 2010, Section 1A, 1B, 3A, 63(e) of the Civil Procedure Act, Article 159 of the Constitution of Kenya 2010. In the Application, the Respondent seeks the following orders: -a.Spentb.That this Honourable Tribunal be pleased to set aside the orders made on the 22nd June, 2023 dismissing the Respondent/Applicant’s Application dated 9th November, 2022 and all other consequential orders thereto.c.That the Honourable Tribunal be pleased to reinstate the Application dated 9th November, 2022, extend the interim orders issued by the Tribunal on 11th November, 2022 and issue a hearing date for the said Application.d.That costs of this Application be in the cause.The Application is premised on the grounds set out on the face thereof that: -i.The Application dated 9th November, 2022 was dismissed for want of prosecution and non-attendance by counsel for the Respondent/ Applicant herein who was not present when the case was called out.ii.That the lack of attendance was not intentional as counsel having personal conduct of the matter had technical difficulties logging into the virtual court owing to a faulty gadget and by the time he logged in again the matter had already been called out and orders issued.iii.That the unfortunate and unforeseen incident repercussions ought not be visited on the Respondent/Applicant.iv.Under Article 159 of the Constitution of Kenya, section 1A and 2A of the Civil Procedure Act, it would be fair, expedient and in the best interest of justice to reinstate the Application dated 9th November, 2022. v.That the Application has been made without delay.The Application is supported by the Affidavit of the Respondent sworn on 27th June, 2023. The Respondent’s evidence reiterates the grounds and adds that that his advocate had always attended court when the matter came up on several instances.When the Application did not proceed as the Claimant/ Respondent was yet to file a response; that the incident ought not be visited on myself as it was an unfortunate and unforeseeable circumstance; that the Application dated 09/11/2022 is meritorious with high chances of success and it is in the best interest of justice that the said Application be reinstated so that it can be heard and determined on merit; that no prejudice will befall the Claimant/Respondent should the Application be allowed.

2. The Claimant opposed the Application vide the Replying Affidavit sworn on 18th July, 2023 by Purity Kagwiria as Managing Director of the Claimant/ Respondent. In the Affidavit, the deponent states:i.That the Application is an attempt by the Respondent/ Applicant to frustrate the Claimant/ Respondent’s execution of the lawful judgement of the Tribunal rendered on 14th June, 2022. ii.That contrary to the Applicant’s contention, the Claimant/ Respondent filed a Replying Affidavit on 30/1/2023. iii.That on 21st February, 2023, the applicant was absent.iv.That by the date of dismissal, the Applicant had not filed Submissions on the same whereas the Claimant/ Respondent filed his submissions.v.That no evidence has been adduced and no Affidavit has been sworn by the Respondent/ Applicant’s Advocate in support of the alleged difficulties in logging into the virtual court on 22nd June, 2022. vi.That the overriding objective must be taken as a double edged sword and the Applicant is alive to the need for a just and expeditious resolution of disputes as encapsulated in the Kenyan Law he relies upon.vii.That the Claimant/ Respondent continues to suffer prejudice owing to the inability to keep the fruits of judgement.

Analysis and Determination Background. 3. The Tribunal entered judgement herein against the Respondent in favor of the Claimant on 14th June, 2022, for the sum of Kshs 600,000/= plus costs and interest.On 9th November, 2022, the Respondent filed an Application seeking inter alia an order for stay of execution of the judgement and decree of the Tribunal. The said Application was dismissed on 21st February, 2023 for nonattendance on the part of the Respondent. We do not wish to go further into the said Application dated 9th November, 2022. We shall proceed with the determination of the Application before us in which the Respondent asks the Tribunal set aside the order of dismissal and the Application dated 9th November, 2022 for hearing.

4. There are two issues for determination by us:1. Whether or not the Respondent’s Application dated 27th June, 2023 is merited.2. Who shall bear the costs of the Application dated 27th June, 2023. From the record before us, the Application dated 9th November, 2022 was filed under Certificate of Urgency on 11th November, 2022, when the urgency was considered, interim orders of stay of execution were granted and the Application was fixed for hearing on 28th November, 2022. On the 28th November, 2022, the hearing did not proceed on account of lack of Coram and the matter was adjourned to 13th December, 2022. On the said date, counsels for both parties were in attendance. Counsel for the Claimant/ Decree-holder informed the Tribunal that they were yet to file and serve. Called out Mr. Ochieng Advocate for the Claimant/ Decree-Holder informed the Tribunal that the matter was coming up for mention to confirm filing of response to the Application dated 19/11/2022. He confirmed that they had complied and took directions for filing and service of Submissions. The matter was fixed for mention on 22/6/2023 to confirm their response and sought time to do so.The Tribunal allowed the Claimant time to file and serve their Response within 21 days and the matter adjourned to 21st February, 2023. On the 21st February, 2023, when the matter came up before the Tribunal, the Advocate for the Claimant/ Decree holder was present and according to the Record, the Advocate of the Respondent? Judgement debtor was absent when the matter was in compliance and took a date fir ruling on the said Application dated 9th November, 2022.

5. On the 22nd of June, 2023, the matter came up for mention, when in the absence of counsel for the Respondent/ Judgement-debtor, counsel for the Claimant? Decree-holder informed the Tribunal that they had not been served with the Respondent’s Submissions and prayed for dismissal of the Respondent/ Judgement- debtor’s application for want of prosecution.The Tribunal considered the Affidavit of service filed on proof of service upon the Advocates of the Respondent/ Judgement-debtor and dismissed the Application dated 9/11/2022 for want of prosecution, with costs.

6. From the foregoing, it is clear that the Respondent/Judgement-Debtor failed to turn up in court for two consecutive appearances. In their own application, first on 21st February, 2023 the date having been taken by consent and on 22nd June, 2023 having been duly served with notice to attend. The only reason provided by the Respondent/ Judgement-Debtor for the failure to attend court on the said date is that his advocate had a difficulty logging in to the virtual court on the date the Application was dismissed. No details or evidence of the difficulty are provided. The orders sought by the Respondent/ Judgement -Debtor herein is discretionary in nature. Under Order 12 Rule 7 of the Civil Procedure Rules, the court has discretion to set aside, recall and or reinstate a suit or Application dismissed for non-prosecution or non-attendance.

7. In exercising our discretion, we must consider whether the Applicant has provided reasonable grounds of the Application in view of the prejudice that the Respondent would suffer if the reinstatement was made. Out mandate is to do justice without exercising our discretion in a manner that results in assisting a person who has deliberately sought to obstruct the course of justice.The Respondent/ Judgment Debtor herein has called upon not to visit the non-attendance of his Advocate upon him. In the case of Belinda Wainaina(1961) EA 679, it was held that mistakes of counsel may amount to sufficient cause whereas evidence not being provided to support the Respondent? Judgement-Debtor’s averment that his counsel had difficulty logging into the virtual court, we hesitate to condemn the Respondent/Judgement-Debtor unheard on account of failure of his Advocate to attend court; noting that the current Application was filed without undue delay. We take cognizance of the fact that the Claimant/ Decree-Holder is vested with its judgement in the main suit and no prejudice will be caused by the grant of the Application herein.

8. Consequently, in line with the provisions of Articles 48, 50 and 159 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act, we allow the Respondent’s Application and order as follows: -1. The order of dismissal of Application dated 9. 11. 2022 issued on 22/06/2023 is hereby set aside.2. The Respondent/Judgment-Debtor’s Application is reinstated together with interim orders of stay of execution issued on 11th November, 2022. 3.The parties to file and serve Written Submissions on the Application dated 9/11/2022, within 14 days each from the date of this Ruling. In default the Application will stand as dismissed.4. Mention to confirm written submission on 18. 4.2024. Interim orders extend till then.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. .....................HON. BEATRICE KIMEMIACHAIRPERSON.....................HON. BEATRICE SAWEMEMBER.....................HON. FRIDAH LOTUIYAMEMBER.....................HON. PHILIP GICHUKIMEMBER.....................HON. MICHAEL CHESIKAWMEMBER.....................HON. PAUL AOLMEMBERTribunal Clerk JemimahOchieng advocate for Judgment Creditor.Muinde advocate holding brief for Mungai- advocate for RespondentHon. Beatrice Kimemia Chairperson