Gitonga v Biashara Sacco Society Limited & another (Tribunal Case 628/E757 of 2023) [2024] KECPT 1816 (KLR) (28 November 2024) (Ruling)
Neutral citation:
[2024] KECPT 1816 (KLR)
Republic of Kenya
Tribunal Case 628/E757 of 2023
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
November 28, 2024
Between
Purity Kathure Gitonga
Claimant
and
Biashara Sacco Society Limited
1st Respondent
Providence Auctioneers
2nd Respondent
Ruling
1.The Notice of Motion Application dated 3rd July 2024 is brought under Articles 159 and 40 of the Constitution, Section 1A,1B and 3A of the Civil Procedure Act, Section 90 of the Land Act, Order 40 Rule 1 and 2 and Order 51 of the Civil Procedure Rules, Rule 15 B, C, D and E of the Auctioneers Rule seeking among others Orders:a.Spentb.Spentc.That pending the hearing and determination of the application inter-parties, the honorable Tribunal be pleased to issue an ex-parte temporary order restraining the 2nd Respondent from disposing off Timau/Timau Block 7/51 by way of public auction on 12th July 2024d.That pending the hearing and determination of the main suit, the honorable Tribunal be pleased to issue an order of injunction against the Respondents restraining them from disposing off Timau/Timau Block 7/51e.That the honorable Tribunal be pleased to set aside the orders made on 5th June 2024 dismissing the suit for non-attendance on the part of the Plaintifff.That the matter be reinstated for expedient hearing and disposal on its meritsg.That the intended Sale of the suit property by way of public auction on 12th July 2024 is unprocedural pursuant to the Auctioneer's rules
2.The application was supported by the annexed Affidavit of Purity Kathure Gitonga on the grounds:a.That the plaintiff is the legal and registered owner of Title Number: Timau/Timau Block 7/51 which is the suit propertyb.That the 2nd Respondent has under instructions of the 1st Respondent advertised the suit property for sale through public auction which is slated on 12th July 2024 should they not be restrained by the honorable Tribunalc.That the suit was dismissed on 5th June 2024 for non-attendance by the Plaintiff former advocates M/S Mutembei Chabari & Co. Advocates LLP who failed to inform the Plaintiff that the matter was coming up for hearing on the said date.d.That the firm of M/S Mutembei Chabari & Co. Advocates LLP had filed an application seeking leave to cease acting for the Plaintiff which was not served upon the Plaintiffe.That the mistakes of an Advocate should not be visited upon an innocent litigant who has always been desirous of prosecuting their matter expeditiously to its logical conclusionf.That it is in the best interest of justice that the matter be reinstated and an order be granted restraining the 2nd Respondent from selling the suit property through public auction on 12th July 2024 as the application and the main suit will be rendered nugatory, thereby causing the Plaintiff to suffer irreparable loss as she will be left destitute for reasons that she lives on the suit property with her family.
3.This Tribunal on 10th July, 2024 gave directions for the Application to be served on all the parties, and parties to file and serve their responses. The Tribunal also gave the order for status quo to be maintained till the hearing of the application on 5th August, 2024.
4.In opposition to the application, the Respondent through Anthony Mwangi Nganga on 19th July, 2024 filed a Replying Affidavit stating among others:a.That the application is bad in law, frivolous and an abuse of the court processb.That the plaintiff is merely using the honorable Tribunal to avoid the consequence of non-payment of the instant loanc.That the matter was filed under a certificate of urgency dated the 2nd October 2023 pursuant to which she obtained interim orders dated 6th October 2023d.That upon receipt of the court order dated 6th October 2023 the Plaintiff waited until 13th October 2023 to serve the same thus making sure the application could not proceed on the 16th October 2023e.That the Plaintiff then failed to appear in court on the 12th April 2024 despite the date having been taken by consentf.That the Respondents then served the Plaintiff with a hearing notice for the 5th June 2024 on the 3rd May 2024 upon which she failed to attend court despite the honorable Tribunal giving her a leeway to hear the main suit and bypass the Application dated 2nd October 2023g.That the Application dated the 3rd June 2024 was filed in the morning of the 5th June 2024 when the matter was to come for the hearing, an attempt as the Honourable Tribunal noted was merely meant to avoid the hearingh.That the Plaintiff is merely being mischievous and the application should be dismissedi.That the Application dated 2nd October 2023 and the suit contains admission and are thus frivolous and vexatious
5.The Plaintiff filed a further affidavit in response dated 9th August, 2024 stating:a.That the Plaintiff’s former advocates failed to inform the Plaintiff of their intention to cease representing the Plaintiff in the matter by failing to serve the Plaintiff with an application to cease from actingb.That the Plaintiff has always been ready to proceed with the hearing of the matter and that the same was adjourned at the request of the Plaintiff’s advocates vide a letter dated 22nd March 2024c.That the Application is meritorious and not frivolous nor vexatious as the Plaintiff desires to prosecute the matter expeditiously to its logical conclusiond.That the Respondents have not demonstrated any prejudice they stand to suffer if the application is allowede.That it is in the interest of justice that the instant Application be allowed
6.The Tribunal on 14.8.2024 ordered that the case be canvassed through written submissions. The Plaintiff filed their submissions dated 27th August 2024 stating among others:a.That when the suit was dismissed on 5th June 2024 for non-attendance, the Plaintiff’s advocates at that particular time had made an application before the honorable Tribunal to cease acting, but the application was never served on the Plaintiff and as a result the Plaintiff was unaware that the matter was scheduled for hearing on the very date the suit was dismissedb.That the Plaintiff only realized that the matter had been dismissed at the point of the suit property being advertised for public auctionc.That the Plaintiff has met the threshold for an order of an injunction against the respondent as she has laid out and established a prima facie cased.That the Plaintiff’s case is arguable and has a high probability of successe.That it is in the interest of justice and fairness that the matter be reinstated for hearing as the Respondent shall suffer no prejudice since both parties shall have their day in court and the matter be heard on meritf.That the intended sale of the suit property by way of public auction on 12th July 2024 is unprocedural as the Respondent failed to adhere to the provisions of rule 15 (d) of the Auctioneers Rules which require an auctioneer upon receipt of a court warrant or letter of instruction in the case of immovable property, to give in writing to the owner of the property a notice of not less than 45 days within which the owner may redeem the property by payment of the amount set forth in the court warrant or letter of instruction
7.We have considered the Application, the Replying Affidavit filed, Supplementary Affidavit and the written submissions and the only two questions remaining for determination are:a.Whether the reasons given are sufficient to issue an order of injunction against the Respondents restraining them from disposing off Timau/Timau Block 7/51?b.Whether the reasons given are sufficient to set aside the orders of 5th June, 2024 and reinstate the suit?Whether the reasons given are sufficient to issue an order of injunction against the Respondents restraining them from disposing off Timau/Timau Block 7/51?The guiding principles for the grant of orders of temporary injunction are well settled and are set out in the judicial decision of Nguruman Limited v Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that;
8.In this particular case, from the facts presented, we are convinced that if the orders of temporary injunction are not granted, the property in dispute might be in danger of being sold by way of public auction as the auctioneer acting for the Respondent has already even advertised the property for auction. As such, we find that the Plaintiff has met the criteria for grant of orders of temporary injunction.Whether the reasons given are sufficient to set aside the orders of 5th June, 2024 and reinstate the suit?Setting aside a dismissal order is also under the court’s discretion. The law regarding exercise of the Court’s discretion is now settled. In Shah v Mbogo [1967] EA 116 and 123B the court stated that: -
9.Various reasons have been given as to what led to the initial dismissal of the suit. Most of those reasons point to the lack of communication between the Plaintiff and her former advocate. Courts have determined before that mistakes leading to some failures by an advocate which affects one party in a suit, needs to be examined to ensure that a party is not condemned for the mistakes of his advocate. In Itute Ingu & another v Isumael Mwakavi Mwendwa [1994] eKLR, the court stated:
10.The question therefore is, is the mistake of the Plaintiff’s former advocate in not serving or communicating with her about the status of this case reasonable or bona fide and has it been explained to the satisfaction of the Tribunal? It is our considered view that the reasons given are persuasive on a balance of probability for this Tribunal to exercise its discretion to reinstate the matter so that substantive issues like how much was the loan, when was it given, how much of it has been paid or how much of it is remaining unpaid are determined on merits. As such, we have exercised our discretion to reinstate this suit and have it determined once and for all on merit. In the same spirit, we also wish to also state that this case will be placed on fast-track, and no party will be given any leeway to delay the proceedings any further. Litigation must come to an end at some point.
Final orders:
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF NOVEMBER, 2024.HON. B. KIMEMIA - CHAIRPERSON SIGNED 28.11.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 28.11.2024HON. BEATRICE SAWE - MEMBER SIGNED 28.11.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 28.11.2024HON. PHILIP GICHUKI - MEMBER SIGNED 28.11.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 28.11.2024HON. PAUL AOL - MEMBER SIGNED 28.11.2024Tribunal Clerk JemimahRuling delivered in presence of Ng’ang’a advocate for RespondentNo appearance for ApplicantHON. B. KIMEMIA - CHAIRPERSON SIGNED 28.11.2024