Wachira v Ominde [2024] KECPT 1184 (KLR)

Wachira v Ominde (Tribunal Case 578/E753 of 2023) [2024] KECPT 1184 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1184 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 578/E753 of 2023

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

July 25, 2024

Between

Stephen Gichuki Wachira

Claimant

and

Jared Omondi Ominde

Respondent

Ruling

Notice Of Motion Application 1. The Notice of Motion Application dated 6th December, 2023 was filed under Section 3A of the Civil Procedure Act, Section 41(1) (a) and (2), 42 and 43 of the Small Claims Act seeking among others orders:a.Spentb.Spentc.That the Honorable Tribunal be pleased to stay the interlocutory judgment and all Consequential Orders pending hearing and determination of the Application.d.That the Honourable Tribunal be pleased to review, vary and/or set aside default interlocutory judgment and all Consequential Orders pending hearing and determination of the Application.e.That the Honourable Tribunal be pleased to deem the Notice of Preliminary Objection filed on 23. 10. 2023 as properly and duly filed.

2. The Application was supported by the Affidavit of Jared Omondi Ominde on the grounds that:a.The Interlocutory Judgment was entered on 27. 11. 2023 despite a Memorandum of Appearance, Notice of Appointment of the firm of Karithi Njagi and Company Advocates and the filing of a Notice of Preliminary Objection on the 23. 10. 2023. b.Through the negligence of the staff of the Tribunal, the mention notice of 22. 11. 2023 was never served upon the Respondent.c.The Respondent is desirous of defending the suit and he will suffer prejudice if the orders he is seeking are not allowed.

3. The Tribunal on 14. 12. 2023 gave directions for the Application to be served with further orders given on 7. 3.2024 for the Application to be canvassed by way of written submissions.

4. The Respondent filed his written submissions on 3. 5.2024 and argued among others that negligence was committed against him when the tribunal staff who are obligated by the judiciary e-filing manual to acknowledge documents, did not do the same.

5. It was also the Respondent’s argument that personal service to him was never effected on compliance with order 5 Rule 8 (1) of the Civil Procedure Rules.

6. We have considered the pleadings and the only question remaining for determination is as to whether this tribunal should set aside the interlocutory judgment entered against the Respondent.

Should the interlocutory judgment entered against the respondent be set aside? 7. The decision to set aside or not set aside an interlocutory judgment is a matter of courts discretion. That discretion is exercised in the interest of justice to the parties to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a party who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.

8. In this particular case, we have considered the chain of events and analyzed the pleadings and evidence adduced and it is our considered view that injustice will be occasioned to the Respondent, if we do not set aside the interlocutory judgment and allow him to defend the claim.

Final Ordersi.The Notice of Motion Application dated 6th December, 2023 succeeds.ii.The Interlocutory judgment entered on 22nd November, 2023 is set aside.iii.Costs in the cause.iv.Mention for further directions on 7. 10. 2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024TRIBUNAL CLERK JONAHBosire for RespondentStephen Gichuki 1st ClaimantHON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024