Wana-Anga Co-operative Savings & Credit Society Limited v Cheruiyot [2023] KECPT 924 (KLR)

Wana-Anga Co-operative Savings & Credit Society Limited v Cheruiyot (Tribunal Case 458 of 2019) [2023] KECPT 924 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 924 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 458 of 2019

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

August 31, 2023

Between

Wana-Anga Co-operative Savings & Credit Society Limited

Claimant

and

Collins K. Cheruiyot

Respondent

Ruling

1. The Application before us is the Notice of Motion dated 1st April 2022 filed by the Respondent seeking for orders:a.Spent.b.That this Honorable Court be pleased to set aside the proceedings of the 24th February, 2022 and all other consequential orders thereto.c.That alternatively this Honorable Court be pleased to allow the Respondent/Applicant to cross-examine the Claimant’s witness and thereafter to present the Respondent case to pave way for final submissions.d.That the costs of the application be provided for.

2. The Application is based on the grounds there under and supported by the Affidavit of William Kipkorir Arusei advocate sworn on 1st April 2022 and the Supplementary Affidavit sworn on 19/5/2022, filed on 26/5/2021.

3. The gist of the Respondent/Applicant’s Application is that due to an inadvertent error, the hearing of the Claimant’s case proceeded without the Respondent/Applicant. The error is said to have occurred when an advocate representing the Respondent was logged out of the virtual proceedings, believing that the case had been adjourned to another date whereas the same proceeded and the Claimant stated and closed its case in the absence of the Respondent.

4. The Claimant/Respondent filed a Replying affidavit sworn by Eva Musaon 12th April 2022, opposing the application and stating that the application is defective and mischievous and brought in bad faith and aimed at frustrating the Claimant. The Claimant avers that indeed Counsel for the Respondent attended court and they do not lender why she left; the failure to attend at the hearing was intentional urging the Tribunal to dismiss the Respondent’s Application with costs.The Application is canvassed by way of written submissions.The Claimant/Respondent’s submissions are dated 6th October 2022 and filed on even date. Therein, the Claimant/Respondent reiterated the contents of the Replying Affidavit and concluded that the Applicant does not deserve the orders sought.The Respondent/Applicant’s submissions dated 28th September, 2022 were filed 30th September, 2022. Therein the Respondent reiterates that the failure to attend court on the material date was due to an error and that the mistake of the advocate ought not to be visited upon the client.

5. We have considered all the documents filed by both parties in regard to the Application herein and conclude as follows:1. That on the 24th February, 2022 both parties were aware of their requirement to attend court for hearing.2. That whereas counsel for the Respondent/Applicant was present when the case was first mentioned; she thereafter was not present.3. That while Counsel for the Claimant/Respondent contends that the failure of the Respondent/Applicant to attend the hearing was intentional and deliberate; counsel for the Respondent/ Applicant disagrees and has set out reasons why their non-attendance was not willful but occasioned by matters attributed to error on the part of the Respondent/Applicant’s Advocate.4. It is also clear from the Replying Affidavit of the Claimant/Applicant that the Advocate for the Respondent/Applicant was present first virtually and later attended court when a different hearing was in session.5. We fail to understand why the Respondent’s Advocate would fail to attend the hearing after turning up for the same twice for the same.6. It was the duty of the Respondent’s to take necessary and diligent steps to attend the hearing; especially after the same was confirmed by the Tribunal.

6. We therefore find that there is no sufficient cause shown for us to exercise our discretion in favour of the Applicant.We therefore dismiss the Respondent’s Application with costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER