Case ID:179626

Dekoma Slaughter House Meat Vendors & Livestock Dealers Co-operative Society v Maina Mamo Mato [2021] eKLR

Case Metadata

Case Number:

Civil Appeal Environment and Land Case 196 of 2017

Parties:

Dekoma Slaughter House Meat Vendors & Livestock Dealers Co-operative Society v Maina Mamo Mato

Date Delivered:

26 Jul 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Dekoma Slaughter House Meat Vendors & Livestock Dealers Co-operative Society v Maina Mamo Mato [2021] eKLR

Advocates:

Ochieng Ogutu & Co. Advocates for the Appellant/Applicant

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Ochieng Ogutu & Co. Advocates for the Appellant/Applicant

Case Outcome:

Application dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

CIVIL APPEAL ELC NO. 196 OF 2017

DEKOMA SLAUGHTER HOUSE MEAT VENDORS & LIVESTOCK

DEALERS CO-OPERATIVE SOCIETY......................................................APPLICANT/ APPELLANT

VERSUS

MAINA MAMO MATO......................................................................................................RESPONDENT

(Being an appeal from the Judgment and Award of the Co-operative

Tribunal

in

Tribunal case No. 469 of 2010 at Nairobi

delivered on 2

nd

December, 2016)

RULING

The matter for determination is the

Notice of Motion

Application dated

16

th

December 2019

, brought by the Applicant/Appellant herein brought under

Order 51 Rule 1

of the

Civil Procedure Rules, Sections 3, 3A

and

1A

of the

Civil Procedure Act,

Article 159

of the

Constitution

for orders that;

1. The Honorable Court be pleased to set aside its Orders given on

14

th

October 2019

dismissing this appeal for want of prosecution.

2. The Honorable Court be pleased to reinstate this Appeal for hearing and disposal.

3. Costs of this Application be provided for.

This Application is premised on the grounds stated on the face of the Application and the Supporting Affidavit of

Apo Ogutu

. He deponed that the Co-operative Tribunal delivered a Judgement on

2

nd

December 2016,

which the Appellant was not satisfied with and intended to Appeal.

That the copies of proceedings and judgement were not availed to them after a reasonable time had passed prompting them to write a letter dated

24

th

January 2017

. He further deponded that this Court issued a Mention Notice for the case to be mentioned on

13

th

June 2019,

and on the same date, he sent his Associate to Court for the Mention of the matter, but he later informed him that he had arrived in Court late due to traffic and found the matter already called out and the Court issued a

Notice to Show Cause

why the suit should not be dismissed which was to be heard on

14

th

October 2019

.

It was his contention that the Appellant in an attempt to reactivate the matter, wrote to the Co-operative Tribunal on

14

th

June 2019

requesting for typed proceedings in order to prepare the

Record of Appeal,

but the typed proceedings were not availed by the said date of

14

th

October 2019,

when the Appeal was dismissed for want of prosecution.

It was his further contention that the Appellant took all reasonable steps within the law to reactivate the matter and the Co-operative Tribunal has furnished them with copies of the proceedings and judgement and they can now prepare the record of Appeal. That the Appellant has a very strong case against the Respondent and if this Appeal is not reinstated, the Appellant will suffer huge loss and damages.

The Respondent did not file any response to the Appellant’s/ Applicant’s Application as his Advocate asked the Court to allow him file an Application to cease acting.

The Appellant/Applicant filed its written submissions on

27

th

November 2020,

through the

Law Firm of Ochieng Ogutu &Co. Advocates

and submitted that the Applicant having failed to obtain the proceedings within time, it was unable to file a complete Record of Appeal and secondly, failure of the Appellant’s Counsel to attend the matter on

13

th

June 2019

, was a mistake and not intentional and it relied on the case of

Richard Ncharpi Leiyangu vs IEBC& 2 others CA 18 of 2013,

and in the case of

Belinda Murai &Another v Amoi Wainaina (1978) eKLR 2782.

The Appellant on its submissions also relied on the case of

Ivita v Kyumbu (1984) KLR 441

and in the case of

Pan African Paper Mills v Silvester Nyarango Obwocha(2018) eKLR.

The Court has considered the pleadings in general and the annexures thereto and the main issue for determination is;

Whether the Appellant/Applicant has satisfied the conditions to set aside orders issued on

14

th

October 2019

, dismissing the Appeal for want of prosecution.

The Appellant/ Applicant has sought for orders to set aside the Ruling made on

14

th

October 2019,

dismissing the Appeal dated

3

rd

January 2019,

for want of prosecution.

Order 12 Rule 7

of

the

Civil Procedure Rules,

provides that 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. The power to set aside ex parte orders are discretionary and the Court must use its discretion to come to a conclusion while also ensuring that Justice has been done. The Court in

Patel….Vs….E.A Cargo Handling Services Ltd (1974) EA 75,

held that:-

“

There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgment except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the Court is to do Justice to the parties and the court will not impose conditions on itself to feter the wide discretion given it by the Rules.’’

In deciding further on whether or not to grant the orders sought and exercise discretion, the Court is also guided by whether there is sufficient cause for non-attendance and whether an injustice will be occasioned if the Application is allowed.

It is not in doubt that the said

Notice to Show Cause

was issued on

13

th

June 2019,

by the Court and the Appellant/Applicant had not filed an Affidavit to Show Cause why the suit should not be dismissed. The Appellant/ Applicant states that he sent an Associate who had arrived in Court late due to traffic and found the matter had already been called out.

In deciding this matter, the Court will be guided by the decision in the Court of Appeal in the case of

CMC Holdings Lts Vs Nzioki ( 2004) 1KLR

173 , where the Court held that:-

“In an application for setting aside exparte Judgment, the court exercises its discretion in allowing or rejecting the same, That discretion must be exercised upon reasons and must be exercised judiciously”.

The Court found in its Ruling dated

9

th

March 2018,

that the

Notice of Motion Application

dated

25

th

January, 2017,

on seeking stay of the

Judgment and Award of the Co-operative

Tribunal in Tribunal case No. 469 of 2010 at Nairobi delivered on 2

nd

December, 2016,

not merited

and ordered the Applicant to file its Record of Appeal, within

30 days.

Further the Court issued its Ruling on

9

th

March 2018,

allowing the Appellant/ Applicant to file his Records of Appeal within a period of

30 days

. The same was not done within stipulated time. The instant Application is dated

16

th

December 2019

, orders for dismissal for want of prosecution were issued on

14

th

October 2019

. There is a delay of 2 months in bringing the instant application.

It is the Court’s considered view that no sufficient compelling reasons have been tendered by the Appellant/ Applicant as to why there was non- attendance in Court on that particular day and to make matter worse, no cause has been shown why the Appeal remained inactive over a lengthy period of time, since the Court’s Ruling delivered on

9

th

March 2018

ordering the Appellant/Applicant to file a Record of Appeal within 30 days.

It is evident that the Court has discretion to

set aside

an order of dismissal for non-attendance upon such terms. However, the said discretion must be exercised judicially. See the case of

Sametract…Vs…Mags Motors Ltd, Kisumu HCCC No.45 of 1996

, where the Court held that:-

“It is trite law that the court is vested with unfettered discretion in dealing with application for setting aside Judgement. It is also a well-known rule that the discretion must be exercised judicially”.

For the above explained reasons, the Court finds that the

Appellant /Applicant has not advanced sufficient reasons

to warrant this Court exercise its discretion in its favor.

Consequently, the

Notice of Motion

Application dated

16

th

December 2019

is

not merited,

and the same is dismissed entirely with no orders as to Costs.

It is so ordered.

DATED, SIGNED AND DATED, SIGNED AND DELIVERED AT THIKA THIS 26

TH

DAY OF JULY 2021.

L. GACHERU

JUDGE

26/7/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 Rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant/Applicant

No appearance for the Respondent

L. GACHERU

JUDGE

26/7/2021