Gitonga v Commission for Cooperative Development [2023] KECPT 416 (KLR)

Gitonga v Commission for Cooperative Development (Tribunal Case 4 of 2018) [2023] KECPT 416 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 416 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 4 of 2018

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

April 27, 2023

Between

Alvin Richard Njiru Gitonga

Claimant

and

Commission for Cooperative Development

Respondent

Ruling

RULING OF THE TRIBUNAL 1. This ruling dispenses with the Respondent’s Notice of Motion dated April 25, 2022 and filed on April 26, 2022.

2. By its Notice of Motion, the Respondent seeks the following orders:a.Spent.b.That this Honourable court be pleased to set aside the order made on March 23, 2021 dismissing the instant Appeal.c.That this Honourable court be pleased to reinstate the Appeal and the same to proceed and be heard on merit.d.That the costs of this Application be in the cause.

3. The Motion is supported by an Affidavit sworn by Alvin Njeru Gitonga, the Appellant Applicant herein. In his Affidavit, the Appellant prays the court to set aside the dismissal order of March 23, 2021, and allow the Appeal to continue for its determination on merit. According to the Applicant, he filed the Appeal on August 9, 2018 after which there were several mentions until Covid-19 struck when he lost touch with his advocates. Later on, his advocates informed him that the matter had been dismissed because they were not served with the hearing notice for March 23, 2021 and the advocates were not able to attend. He contends that he stands to suffer irreparable damage if the Appeal is not reinstated.

Analysis 4. The legal framework on dismissal of suit for want of prosecution is found in Order 17 Rule 2 which provides as follows:-'2. (1)In any suit in which no application has been made or step taken by either party for one 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.Accordingly, In the case of Josphat Oginda Sasia – Versus - Wycliffe Wabwile Kiiya [2022] eKLR, the court held'But as has been held time and again before, all the court needs to do when a party does not take steps to prosecute his matter is for it to 'give notice' of the intent to dismiss the matter. Such notice can be by way of publishing the intent through the Cause Lists, Websites or even court notice boards. (see the cases of Fran Investments Limited vs G4S Security Services Limited [2015] eKLR and Jim Rodgers Gitonga Njeru – Versus - Al-Husnain Motors Limited & 2 others [2018] eKLR).' 5. On the issue that the Applicant’s advocate failed to attend court on March 23, 2021 because no notice was issued to show that the matter had been listed for the day, it is noted that there is an affidavit of service on record showing that indeed the applicant’s advocate was served with a mention date via email and also via EMS postal service. The Applicant’s Advocate has not disputed the email address to which the notice was sent, and indeed information from the file shows that the applicant’s advocate has previously used the email address to reach the honorable tribunal. Also, the Applicant’s advocate was in court on December 3, 2020 when the court set the February 4, 2021 as the day for mention for directions regarding the dismissal notice. A threat of dismissal should not be taken lightly by any advocate keen on prosecuting his clients matter. However, the Applicant’s advocate did not show up on February 4, 2020 when the date for the dismissal ruling herein was set. The applicant’s advocate never bothered to follow up on what might have transpired in court on February 4, 2020, despite having been in court when the date was set.

6. However, from the documents filed by the Claimant’s advocate, though the same are not brought to the attention of the court, the Appellant’s advocate seems to have tried to secure a hearing date with the Tribunal via email to no avail. The Appellants advocate wrote emails dated October 20, 2020, November 20, 2020, July 14, 2020, November 24 & 25th 2020.

7. The Tribunal has considered the Application and the Applicant’s affidavit is support of this Application, and the evidence on record. The Tribunal was right in dismissing this suit for want of prosecution since no Application has been made or step taken by either party for a period of one year. The Tribunal feels that the Applicant’s advocate is very laidback on assisting his client prosecute this matter. The Advocate would have visited the Court’s Registry to follow up on his client’s matter, and also follow up on what was decided in his absence, knowing very well that the matter was on the verge of dismissal. However, the Tribunal has given a benefit of doubt to the Applicant on his willingness to prosecute the matter and is inclined to give a second chance, and also following the weightiness of the subject matter in that the applicant faces a claim of Kshs 28,000,000/=. The Tribunal also notes that the Respondent has never made an appearance, or defended this Appeal.

8. In the upshot, the Notice of Motion application dated April 25, 2022 is hereby allowed on condition that the matter be prosecuted and concluded within one year of the date of this ruling.

9. No order as to costs.

Ruling signed, dated and delivered virtually at Nairobi this 27th day of April, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by partiesRuling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023NRB.CTC.NO. APPEAL. NO.4 OF 2018 RULING 8