Mwindani Kombo Mwinyi v Bandari Savings & Credit Society Limited & Francis Gatitu Murugu [2021] KECPT 257 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 398 OF 2020

MWINDANI KOMBO MWINYI...........................................................CLAIMANT

-VERSUS-

BANDARI SAVINGS & CREDIT SOCIETY LIMITED........1ST RESPONDENT

FRANCIS GATITU MURUGU.................................................2ND RESPONDENT

RULING

The Respondent has filed aNotice of Motion Application dated 21st April 2021, seeking orders to set aside the Orders made by this Tribunal on 15th April 2021, dismissing the Claimant’s Suit for want of attendance and all consequential orders thereto. The matter was coming up for directions on 15th April 2021, on a Request for Judgment since the 1st Respondent had entered appearance but failed to file a Defence within the prescribed time.

The Claimant contends that his Advocates on record were in the virtual platform on the 15th April 2021, but the said Advocates were also involved in another matter, to wit, HCFA 16 of 2018 Ibrahim Hussein -vs- Hussein Kassim Hissein before Hon. Onyiego. When this present case was called out, the Advocates on record for the Claimant requested in the online chat within the court’s virtual court that the file be placed aside.

We have read and considered the Pleadings and submissions of both parties, and we hereby render our decision on the said Application to reinstate the Claim. Order 12 Rule 3(1) of the Civil Procedure Rules 2010provides as follows:

“If on the day fixed for hearing, after the suit has been called on for hearing outside the court, only the defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.”

It is not in disputation that the Claimant was absent on the date slated for Hearing the case. The Court, rightly, dismissed the Claim. In the mind of the court, it were prudent for Counsel for the Claimant to seek the indulgence of the court and request for the file to be placed aside, rather than writing on the chat group of the court, as there is a risk of the chat being missed.  It is however a reasonable explanation, and this Tribunal finds that the Claimant exercised diligence and alacrity in making this Application to reinstitute the Claim, demonstrating willingness to prosecute it. This Tribunal invokes the provisions of Order 12 Rule 3(1) of the Civil Procedure Rules 2010which provide as follows:

“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”

We therefore find in favour of the Claimant, and hereby set aside our Ruling of 15th April 2021 that dismissed the Claim for non-attendance of the Claimant. In the interest of justice, we find that the Orders sought should not be granted and the Application dated 21st April 2021 be allowed.

Additionally, we note that there is a Response to the Claim dated 16th November 2020. The Claim is about a refund of deducted amounts of Kshs. 275,165. 33 that the Claimant contends were unlawfully deducted without the Claimant’s authorization.  We direct that the Claim proceeds to full trial to ascertain the merits of the case.

ORDERS

We therefore Order as follows:

a.The Claimant’s Applications dated 21st April 2021 be and is hereby allowed with no orders as to costs.

b.Parties to exchange witness statements and documents within 30 days hereof.

c.Mention for directions on 10. 11. 2021. Notice to  issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia      Chairperson    Signed      2. 9.2021

Hon. J. Mwatsama  Deputy Chairperson  Signed      2. 9.2021

Mr. Gitonga Kamiti Member     Signed      2. 9.2021

Mr. B. Akusala   Member    Signed      2. 9.2021

Tribunal Clerk   R. Leweri

No appearance

Hon. B. Kimemia   Chairperson  Signed      2. 9.2021