Mwahu v Nyakuru Coffee FCS Limited [2025] KECPT 211 (KLR)

Mwahu v Nyakuru Coffee FCS Limited (Tribunal Case 404/E557 of 2022) [2025] KECPT 211 (KLR) (Civ) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 211 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 404/E557 of 2022

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya & P. Gichuki, Members

February 27, 2025

Between

Margaret Kahumbu Mwahu

Claimant

and

Nyakuru Coffee FCS Limited

Respondent

Ruling

1. The Application for determination is dated 3rd June, 2024. The application seeks for:-a.That this matter be certified as urgent and the same be heard exparte in the first instance and any subsequent hearing be also heard exparte hence service thereof be dispensed with.b.That this honorable court be pleased to review, set aside and/or vacate the orders issued on 3rd June 2024 by Hon. J. Mwatsama dismissing this civil appeal for want of prosecution.c.That this honourable tribunal be pleased to issue a stay of execution of the respondent’s letter dated 21st October, 2021 and allow the claimant/Applicant herein to supply her coffee produce pending hearing and determination of the main claim.d.That pending hearing and determination of this application this honorable court be pleased to reinstate the interim orders issued 24th August 2023, vide a ruling of Hn. J. Mwatsama delivered on 24th August 2023. e.That this honorable court be pleased to an order reinstating this claim for proper/full hearing and determination of the rights and liabilities of each party on merits of their case.f.That this honorable court be pleased to give further orders and/or directions as it may deem fit and just to grant.g.Costs of this application be in the cause.

2. The Application is supported by the Affidavit of Margaret Kahumba Mwahu where she states here matter was summarily dismissed on 3rd June, 2024 through an Application by Respondent’s counsel who concealed the fact, they had examination to the Claimant’s advocate and counsel was on his way to court.

3. That Claimant was ready to proceed on the said date but his motor vehicle developed mechanical problems and as such called Respondent’s counsel informing him of his predicament and to indulge him as he was on his way. It was not proper for Respondent counsel to make an application for dismissal yet they were in contact with his advocate. The Claimant/Applicant seems for article 159 (2) (d) constitution of Kenya to be taken into consideration. The Claimant/Applicant also attached phone messages from his counsel to Respondent’s counsel in a bid to have him accommodated on the hearing date just to prove that he was in contact with Respondent Advocate.

4. The Respondent filed a response to the Application sworn by Wilson Mwangi Githu sworn on 19/6/24 to which he stated he was ready to proceed with the case on 3/6/24 and was in court @ 8. 20 a.m.

5. He states his advocate received a case at around 10. 30 a.m. from Claimant Advocate and was informed Claimant’s advocate Land crossed Sagana River on his way to Njeri Law courts as such he would not take more than an hour to drive. Respondent further states the matter was earlier around 12. 07 pm and Respondent Advocate rightly informed the Tribunal he had not seen the Claimant’s Advocate nor the Claimant.

6. Later is when they found out the Claimant Advocate had sent an email message stating his car has broken down. The Respondent avers Claimant is not decertify of the orders sought. Parties filed their Witness Submissions with Claimant filling witness submissions dated 14/8/24 and Respondent filed Witness Submissions dated 22/8/24 on 28/8/24. Having considered the Application Affidavits in support of Witness Submissions the issues for determination are: -Issue One.Whether claimant had a sufficient reason not to attend court.Issue two.

7. Whether the Respondent has met the threshold to warrant reinstatement.

Issue one Whether the Claimant had a sufficient reason not to attend court? 8. In the CA 91 of 1998- Nairobi Peter Ngome vs. Plantex Co. Ltd. Hancox JA Kneller J.A and Chesoni Ag. J.A. as he was then the Judge allowed the appeal to set aside the Resident Magistrates Order 29/4/1983 dismissing the Plaintiff’s case.

9. Case of ELC No. 20 of 2021- Siaya. Collins Otieno Otundo vs. Anania Omondi Njemo Otendo and 2 others. The court looked into section 80 Civil Procedure rule and order 45 Civil Procedure rule the court has jurisdiction to review its orders. Justice DY. Koross allowed orders to set aside and vacated dismissal orders. The Claimant has through her Affidavit narrated why she was unable to attend court session on 3/6/24 citing mechanical challenges with his motor vehicle. A problem which they communicated to the Respondent’s Advocate but Respondent Advocate was not kind enough to inform court.

10. Indeed, we communicated that there was such communication as the seams is not denied by the Respondents herein but for the timing. We find that Claimant had a challenge in arriving at the court premises and his information was relayed to the Respondent Advocate who out of country ought to have informed the Tribunal at the very least for us to know the predicament of the counsel.

11. We find there is sufficient reason given by Claimant as to why they did not attend the court session.

Issue Two: 12. Whether the Respondent has met the threshold to warrant reinstatement? Indeed, the Applicant, made an effort and filed certificate of urgency and this current application the very day the matter was to be heard. Time is of essence. And Claimant/Applicant filed the Application in due time. We are convinced the Applicant had challenges the money morning of the hearing and as such we are inclined to grant them another opportunity to prosecute their claim.

Upshot: 13. The Application dated 3/6/24 is allowed as prayed with no orders as to costs.a.The orders to dismiss the Claimant’s suit are hereby set aside and claim is reinstated.b.The interim orders granted on 24/8/23 are reinstated.c.Hearing of main suit on 12/8/25- Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 2.2025TRIBUNAL CLERK J.MUTAIKaranja advocate for claimantNo appearance for Respondent.