Irungu v Transcom Sacco Society Limited [2024] KECPT 237 (KLR)

Irungu v Transcom Sacco Society Limited (Tribunal Case 360 of 2019) [2024] KECPT 237 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 237 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 360 of 2019

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

March 7, 2024

Between

Geoffrey Fracis Irungu

Claimant

and

Transcom Sacco Society Limited

Respondent

Ruling

1. This Ruling dispenses with the Notice of Motion Application dated 21st August 2023, supported by an Affidavit sworn by one Joseph Maina, the Director of the Respondent, and brought under Article 159(2) of the Constitution of Kenya, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act, Order 12 Rule 7 of the Civil Procedure Rules and all other enabling provisions of the Law.The Application seeks the following orders:a.That the Honourable Tribunal be pleased to vary or set aside its orders dismissing the Respondent/Applicant ‘s Notice of Motion Application dated 22nd March 2023 for non- attendance.b.The Notice of Motion Application dated 22nd March 2023 be and is hereby ordered reinstated for hearing and determination on merit.c.The costs of this Application be in cause ; andd.Any other and or further orders that this Honourable Tribunal may deem fit to grant.

2. The Application is premised on the grounds on its face which are inter alia that: The Respondent filed a Notice of Motion Application dated 22nd March 2023. That the Notice of Motion was placed before the Tribunal for directions on 17th August 2023 and was dismissed for want of advocates on record. That the Applicant’s advocate was unable to join the proceedings virtually because of internet downtime.

3. The brief background of this matter is that the Claimant filed a Statement of Claim dated 12th April 2019 seeking an order for refund of his shares, and the payment of his accrued dividends by the Respondent. The Respondents failed to enter appearance and Judgment was entered in favour of the Claimants against the Respondent on 10th December 2019. The Respondent filed an Application dated 22nd March 2023 to set aside the interlocutory judgment entered against them. The application was slated for a mention on 17th August 2023 to confirm filing of submission by the parties. The Applicant did not appear, and neither had they filed any submissions and the matter was dismissed, hence this Application.

Analysis 4. Only the Respondent’s Submissions are on record.

5. This Tribunal has considered the Application and the Submissions of the Respondent. The question that this Tribunal has to answer is whether the Applicant’s Application is merited and whether he is entitled to the reliefs sought:Article 159 (2)(d) of the Constitution of Kenya, 2010 enshrining the non-technicality principle of the court. It provides:“ exercising judicial authority, the courts and tribunals shall be guided by the following principles……….. –(d.) Justice shall be administered without undue regard to procedural technicalities;The Application in this matter was dismissed because the advocate made no appearance. The advocate has indicated that he did not make an appearance because of poor network.However, the said Advocate has not adduced any evidence of efforts made to log in or that on the said date or that he took any steps towards making an appearance.It is already established in law that Judicial discretion should be exercised on the basis of actual circumstances and not on account of sympathy, personal opinion or wish.The upshot is that the Applicant has not provided sufficient reason for failure to attend at the Tribunal for the hearing.We therefore find that the Respondent’s Application lacks merit and the same is hereby dismissed with costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahWakiaga for Respondent.No appearance for ClaimantHon. Beatrice Kimemia Chairperson Signed 7. 3.2024