Ezekial Gumbo v Bob Morgan Co-op Soc. Ltd [2020] KECPT 94 (KLR)

REPUBLIC OF  KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 312 OF 2019

EZEKIAL GUMBO ...............................................................CLAIMANT

VERSUS

BOB MORGAN CO-OP SOC. LTD..............................RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 13/1/2020.  It seeks, in the main, for an order for reinstatement of the suit.

The Application is supported by the grounds on its face and the Affidavit of the Claimant sworn on even date.

Vide the instant Application, the Claimant contend that the instant suit was withdrawn vide a Notice of withdrawal of suit dated 2/9/2019 erroneously.  That he intended to withdraw instructions from his previous Advocates on record but not withdraw the suit all together.

That he did not know of the status of his claim.  That he is desirous of prosecuting the suit to its logical conversion.

Respondent’s Case

We have perused the record and note that the Respondent did not file any substantive response to the Applications.  We note, however, that he filed Written Submissions in opposition to the Application.  The same are dated 10/6/2020.

Disposal of the Application

Vide the directions given on 4/3/2020, the Application was disposed of by way of written submissions.  The Claimant filed his on 8/6/2020 while the Respondent did so on 10/6/2020.

Issues for determination

We instant Application has presented the following issues for determination:

a. Whether the Claimant has laid a proper basis to warrant the grant of the Order sought; and

b. Who should meet the costs of the Application.

Reinstatement of suit.

The remedy for reinstatement of a suit is an equitable one which should be decided on the basis of the Principles of equity .  The courts power to reinstate a suit is a discretionary one. The discretion is donated by Section 3Aof the Civil Procedure Act ( Cap 21) Laws of Kenya.  In the case of Belinda Murai & others –vs- Amoi Wainaina (1978), the court had this to say as regards party’s access to the seal of Justice.

“ The door of justice is not closed because a mistake has been made by a lawyer of experience when ought to know better.  The court may not condone it but if ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate.  It is known that courts of justice themselves make mistake which is politely referred to as entering in their interpretation of laws and adoption of a legal point of view which courts of Appeal sometimes over mile…”

Further on discretion, the court in the case of Wanjiku Kamau –vs- Tabitha Kamau & 5 others (2014) eKLR has this to say:

“The court has the discretion to set aside judgment or order and there are no limitations and restrictions on the discretion of the judge except of the judgment or order is raised.  It must be done on term that are just.”

In the case of Lochab Bros Ltd –vs- Peter Kalama T/a Lumumba, Mumma & Kaluma Advocates 20 eKLR the contend.

“The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to ….the wide discretion given to it by the rules.”

Applying these principles to the facts of the present Application, it is not in dispute that the Claimant instituted the current suit on 14/6/2019. Upon service of summons, the Respondent entered appearance on 4/7/2019.  He also filed a defence on even date.  Subsequently the Claimant, through his previous Advocate on record filed a Notice of withdrawal of suit.  This was done on 2/9/2019.  Attached to the Notice of withdrawal is a note where it is shown that the Claimant has instructed the firm of Advocates to withdraw the claim. The Claimant has disowned the said Notice of withdrawal on account of the fact that he did not instruct his previous Advocates on record to withdraw the claim. That his intention was to withdraw instructions from the said firm of Advocates. That he is desirous of pursuing the claim to its logical conclusion – that it would be costly to institute a fresh suit.

The law on withdrawal of suits is provided for Under Order 25 of the Civil Procedure Rules: Order 25 Rule 1 provide in this regard thus:

“ At any time before setting down the suit for hearing, the plaintiff may, by Notice in writing, which shall be served on all parties wholly discontinue his suit against all or any of the defendant’s or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action..”

Based on the foregoing and from the material before us, it is apparent that the Claimant’s suit stood withdrawn as at 2/9/2020.  The notice of withdrawal was filed by a firm of Advocates duly instructed by the Claimant.  The Claimant has, by this Application disowned the said withdrawal and laid blame on his Advocates.  Whilst he says so, we have perused the Notice dated 30/8/2019.  It contains instructions to withdraw the suit.  The same does not relate to withdrawal of instruction from the Claimant’s Advocates.

Whilst the Tribunal would be inclined to exercise its instructions in favour of sustaining the suit, the question that it asks itself is what prejudice will the Claimant suffer if the suit is not reinstated. Our answer is that he will not suffer any prejudice.  To the Contrary Order 25 Rule 1 of the Civil Procedure Rules gives him the way to file a fresh suit.

In the circumstance, we do not find merit in the current Application and hereby disallow it with no order as to costs.  The Claimant is at liberty to invoke the Provisions of Order 25 of the Civil Procedure Rules, if he is desirous of pursuing his claim against the Respondent.

Ruling read, dated and delivered via email in accordance with the directions given by the Honourable , the Chief Justice on 15/3/2020, this 30th day of April, 2020.

Prepared by Hon. B. Kimemia – Chairman, Hon. F. Terer – Deputy Chairman and P. Gichuki – Member, with the consent of the parties.

The final orders to be delivered by email in accordance to the prevailing measures during the COVID-19.

Hon. B. Kimemia              ………………….

Chairman

Hon. F. Terer                     …………………..

Deputy Chairman

P. Gichuki                          ……………………