Nyamira Tea Farmers Sacco Limited v Ongondo [2024] KECPT 1385 (KLR)

Nyamira Tea Farmers Sacco Limited v Ongondo (Tribunal Case 423 of 2019) [2024] KECPT 1385 (KLR) (Civ) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1385 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 423 of 2019

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

August 29, 2024

Between

Nyamira Tea Farmers Sacco Limited

Claimant

and

Aska Kemunto Ongondo

Respondent

Ruling

1. Application dated 1/11/2023 is for determination. The same is brought under Section 3A Civil Procedure Act, Order 5 Rule 14 & 17, Order 40 and Order 51 Civil Procedure Rule, Article 159 (2) (d) of the Constitution of Kenya and all other enabling provisions of the law.The Application seeks fora.Thatthe firm of Bundi Grace &company Advocatesbe granted leave to come on record for the claimant/Applicant herein.b.That this Honourable court be pleased to review, vary and or set aside the orders made on the 2nd of November 2021 dismissing the claimant/ Applicant’s suit herein for want of prosecution and be further pleased to reinstate the suit herein on such conditions as it shall deem just.c.That costs of this application be in the cause.

2. The same is supported by the Affidavit of Samuel Masara Sworn on 1/11/2023 who is the Chief Executive Officer of the Applicant. He avers the Respondent has a loan default. Unfortunately, their advocate on record Koina Onyache was indisposed and succumbed to sickness. As a result, the advocate’s matter including the Claimant’s were not adequately handled and as a result was dismissed for want of prosecutor.

3. At the same time a new board was constituted and while sorting our pending legal matters it realized most of Claimant’s matters had been dismissed for want of prosecutor. The delay in prosecution of the case was inadvertent and the Claimant has an arguable case with high chances of success as such it is in the interest of justice that it be heard and allowed.

4. The Respondent filed a Replying Affidavit sworn by Asher Kemunto Ojondo sworn on 22/1/2024 and excuses the said application. She states the Applicant has not satisfactorily demonstrated why the dismissal of the claim should not stand. The matter is brought 2 years after dismissal and since filing of the claim 5 years ago the Claimant never made any effort to fix matter for hearing.Respondent further avers it is the duty of the Claimant to prosecute its case and Applicant failed to show cause why the claim should not be dismissed. The delay is prolonged and inexcusable. Respondent further awes she will be greatly prejudiced due to obvious loss of human memory. As such the Application has not met the threshold to grant the orders and lacks merit.

5. Having considered the application and reply thereof the issue for determination is on whether the Applicant has given sufficient reason for reinstatement in the case of Ivita v Kyunde [1984] KLR 441 espoused that “The test applied by the courts in the application for dismissal of a suit for want of prosecution is whether the delay is prolonged and inexcusable, and if it is whether justice can be done despite the delay”.In the present case the claim is for payment of defaulted loan by the Respondent.

6. 1st question - Is the delay prolonged and inexcusable?The Applicant states their main reason is their advocate falling ill and failed to attend court on their behalf and as such have failed them.It is for this reason they hope to have this case reinstated by reviewing and setting aside orders made on 2/11/2021. 2nd question – whether justice can be done despite the delay?The subject matter of the claim is a defaulted loan of Kshs. 1,297,709. 50/=. Can it still be paid and justice be done?The Respondent took a loan and did not repay. In her defense she pleads the matter is time barred and would revise a Preliminary Objection.This is not a justification on reason why the claim ought to be reinstated. Justice is the instant case can be done if the case is to proceed and we see no prejudice in the case being reinstated.

Analysis 7. Having looked into the two elements to guide the Tribunal in making its decision, we find the Claimants have established a case and we convinced that infact it was not fault of theirs that case was dismissed.Even though the Claimant had a duty to follow up on their case we find they are not entirely to blame and for justice to be seen to be done we find the case can be reinstated as Respondent will not offer any prejudice if at all.

Upshot 1. Application dated 1/11/2023 is allowed as prayed with costs in the cause;a.Firm of Bundi Grace and company are granted leave to come on recordb.Orders made on 2/11/21 dismissing Claimant’s claim are vacated and claim reinstated.

2. Matter for Pre-trial directions on 4/12/2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk JonahNo appearance by parties.Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024.