Case ID:182229

Mwindani Kombo Mwinyi v Bandari Savings & Credit Society Limited & another [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 398 of 2020

Parties:

Mwindani Kombo Mwinyi v Bandari Savings & Credit Society Limited & Francis Gatitu Murugu

Date Delivered:

02 Sep 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

Hon. B. Kimemia - Chairperson, Hon. J. Mwatsama - Deputy Chairperson, Mr. Gitonga Kamiti - Member & Mr. B. Akusala - Member

Citation:

Mwindani Kombo Mwinyi v Bandari Savings & Credit Society Limited & another [2021] eKLR

Court Division:

Tribunal

County:

Nairobi

Case Outcome:

Application allowed

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 CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 398 OF 2020

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

-

VERSUS

-

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

ST

RESPONDENT

FRANCIS GATITU MURUGU.................................................2

ND

RESPONDENT

RULING

The Respondent has filed a

Notice of Motion

Application dated

21

st

April 2021

, seeking orders to set aside the Orders made by this Tribunal on

15

th

April 2021

, dismissing the Claimant’s Suit for want of attendance and all consequential orders thereto. The matter was coming up for directions on

15

th

April 2021

, on a Request for Judgment since the 1

st

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

15

th

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 2010

provides 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 2010

which 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

15

th

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

21

st

April 2021

be allowed.

Additionally, we note that there is a Response to the Claim dated

16

th

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 21

st

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 2

ND

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