Maina v Aranga & another [2025] KECPT 348 (KLR)

Maina v Aranga & another (Tribunal Case 1082. E207 of 2023) [2025] KECPT 348 (KLR) (26 June 2025) (Ruling)

Neutral citation: [2025] KECPT 348 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1082. E207 of 2023

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

June 26, 2025

Between

David Ndungu Maina

Claimant

and

Geoffrey Moseti Aranga

1st Respondent

Stima Sacco Society Limited

2nd Respondent

Ruling

Introduction. 1. In a Notice of Motion Application dated 23rd May 2025 the 2nd Respondent in the Claimant’s Statement of Claim is seeking for orders :a)That the suit be dismissed for want of prosecutionb)The cost of this application be born by the Claimant

2. That Ms. Waguma Christine the Legal Counsel representing the 2nd Respondent swore an Affidavit dated 23rd May 2025 in support of the grounds listed in the Notice of Motion Application.

3. The origin of the 2nd Defendant’s Application stem from a statement of claim dated 8th February 2023 which was filed by the Claimant seeking for three orders :a)An order directing the 1st respondent to refund the claimant Kshs. 287,406/= being money deducted from his sharesb)Another that the 1st and 2nd respondent jointly refund the claimant Kshs. 287,406/= being money deducted from his sharesc)Post and interest to be provided.

4. That upon service of the Statement of Claim the 2nd Respondent filed a Statement of Defence dated 9th August 2023 together with the Witness Statement and List of four documents.

5. One year and one month the Claimant did not take any necessary steps or actions to prosecute the matter which irked the 2nd Respondent feel unsigned notice of Motion dated 30th September 2024 seeking for dismissal of the suit for want of prosecution this was followed by a response by the Claimant Replying Affidavit dated 26th April 2025 which was filed on 23rd June 2025.

6. Upon realizing that the Notice of Motion Application dated 30th September was unsigned the 2nd Respondent filed a Notice of Withdrawal Application dated 23rd May 2025 and on the same day filed a signed Notice of Motion Application with the same contents as the one withdrawn.

2nd Respondent’s Case 7. The 2nd Respondent’s Application seek to have the suit dismissed a simple reason that from the time the Claimant filed the suit on 14th March 2023 and was served with a Defence, the Claimant has lost interest in the suit evidence by the fact that he has not taken any steps to have the matter prosecuted according to the 2nd Respondent the pleadings of the matter closed and the Claimant did not approach the tribunal to take a mention date.

8. The delay has been long,unreasonable and in inexcusable and that it is not be possible for the issues in the case to be tried in a fair manner owing to the prolonged period of time.

Claimants’ Case 9. It is the Claimant’s case that the delay to prosecute the suit was not caused by him but it was caused by a technicality in the Cooperative Tribunal you went further to explain that when he filed the claim the Tribunal's Registry system generated filing fees of Kshs. 700/= which he paid promptly. However, summons were not issued and to quote paragraph two of the replying affidavit they claimant state.“While waiting for signed/endorsed summons to serve,it took too long to get any summons from the registry, they orally told my advocate on record that the file had an issue"

10. After waiting for several months, the Claimant stated that his advocate wrote a letter on 25th March 2024 to request for a mention date but the registry staff advised him orally to wait as the issue was being addressed by the Tribunal Executive Officer.

11. 0n 29th March 2024 a new invoice filing fees for Kshs. 7,058/= was generated which he requested in writing to be waived.

12. The response to the letter did not come immediately but it took time until 7th February 2025 when the Claimant was told that a decision was reached that he has to pay the extra invoice amount which he did through his advocate.

13. After payment of the filing fees the Claimant applied for a mention date which was granted as 17th April 2025. Finally, the Claimant contented that the long delay was not out of his own making or that that of his advocate but the fault was on the part of the Tribunals registry which took from 29th March 2024 to 7th February 2025 to reply to the request to wave the extra generated filing fees.

Analysis and Determination 14. We have read through the statements of the Claimants and the 2nd Respondent the Witness statements and examine the evidence on record. Given the weight of the 2nd Respondent’s Notice of Motion Application dated 23rd May 2023 we have isolated two issues for determination.a)Whether the 2nd Respondent’s Application is merited or notb)Who should bear the cost of the Application

15. To arrive at a determination this Tribunal is guided by the law/rules and the decision of the court in past similar cases.

16. But first before we proceed, in our analysis it is important to understand what the 2nd Respondent is asking the Tribunal to do literally the 2nd Respondent is asking the Tribunal terminate the legal suit due to the failure of the Claimants to actively pursue or prosecute his case within a reasonable period. Section 14 of the Cooperative Tribunals (Practice and Procedure) Rules 2009 speak to the setting down of a claim for hearing as follows:“The Claimant may at any time after Close of hearing and upon giving reasonable notice to the respondents who has appeared, set the suit down for hearing" .

17. Having perused through the file, we note on the face of the file there has no dates fixed for mention or hearing from the date of filing of the Statement of Claim until the most recent mention date of 17th April 2025.

18. The 2nd Respondent under paragraph three of the Ground's listed state that it's now over one year since the matter was filed and the Claimant has totally lost interest in the matter and has not taken steps to have the matter prosecuted .

19. Although the Cooperative Societies Act 1997, the Sacco Societies Act No. 14 of 2008 and the Cooperative Tribunal (Practice and Procedure) Rules 2009 does not have a provision for a specific period when a suit should be prosecuted and concluded, the Cooperative Tribunal rules under Section 6 state that:“Tthe provision of the Civil Procedure Rules Cap 21 shall apply in respect of the proceedings of the Tribunal"

20. This takes us to the Order 17 Rule 2 sub- rule 1 as read with sub-rule 3 of the Civil Procedure Rules which entitles a Defendant to seek for dismissal when a suit remains in active for a period of one year

21. We therefore agree that the suit has been in the Tribunal for the past 1 year but does it meet the threshold for dismissal?

22. To help as unpack this question, we draw guidance from the Holdings of the Court in the case of Ivita versus Kyumbu 1984 eKLR 441 in which the court laid down the principles that must be made before an order of dismissal of a suit issued.

23. For purposes of this suit, we shall single out three of the principles which were reiterated in the case of Mwangi Kimenyi versus AG and another (2014) to wit:a)Whether there has been inordinate delay on the part of the Plaintiff in prosecuting the caseb)Whether the delay was intentional and inexcusablec)What Prejudice will the Claimant suffer if the suit is dismissed?

24. It is not in doubt that the delay is for one year and the explanations given by the Claimant that there was a system problem in the Tribunal when it was generating the filing fees is true. At the course of writing this ruling, we inquired from the registry staff who confirmed that there are several files which were affected including the claimant’s file.

25. On whether the delay was intentional and excusable?

26. A plain reading of the Replying Affidavit by the Claimant to the Respondent’s Notice of Motion gives a chronology of efforts made by the Claimant who kept on visiting his advocate to find out the extend of the resolution of the Tribunal’s system problem that under valued the filing fees. The Claimant’s explanation that whenever his advocate visited the Tribunal’s Registry was told to wait may be believed although this statement was not subjected to any test.

27. However, after the Claimant wrote a letter to the registry requesting for a mention date Luck struck and on 29th March 2024 the Tribunal’s system generated a new invoice which the Claimant contested and remained unpaid until the 7th February 2025 when the Claimant paid it.

27. From the explanations given by the Claimant we are of the view that if this was no under value of the filing fees by the Tribunal’s system from the beginning, the Claimant may not have taken that long prosecute the suit.

28. Accordingly, we are of the view that the delay was not occasioned by his intention but by a system that was far from his reach and therefore he cannot be blamed but instead he is excused.

29. Regarding the Prejudice that the Claimant will suffer if the suit is dismissed at this point, we note that although the parties did not file written submissions on the Respondent’s Notice of Motion Application we observe that the dismissal of a suit for want of prosecution amount to a judgment as was held by the Court of Appeal in the case of Njue Ngai versus Ephantus Njiru and another(eKLR 2016)

30. Dismissal of this suit will definitely deny the Claimant and opportunity to be heard on merit and for the course of justice to be expended.

31. On the other hand, the Respondent has not demonstrated on the grounds of the Application how and what prejudice they have suffered as a result of the Claimant's delay to prosecute the matter.

32. In conclusion, it is our finding that the delay of one year in the circumstances of this suit is not inordinate because the explanation given by the Claimant is reasonable and believable further the conduct of the Claimant to keep vestering his advocate to follow up the delays in the circumstances shows that he was keen to prosecute the suit.

33. We therefore find that the Respondent’s Notice of Motion Application dated 23rd May 2025 lack merit and dismissed.

34. The costs of the application to be on cause.Orders1. The Notice of Motion Application dated 23rd May 2023 lacks merit and is here by dismissed.2. The cost of the application to be on cause3. Mention for Pre-trial direction on 8th September 2025 parties to comply within 30 days.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE - MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 26. 6.2025HON. P. AOL - MEMBER SIGNED 26. 6.2025Tribunal Clerk GechikoJaoko advocate for ClaimantMs. Waguma advocate for the 2nd RespondentGeoffrey Moseti - No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025