[2021] KECPT 266 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.45 OF 2020

ABUBAKAR OSMAN ABDALLA...................................................CLAIMANT

VERSUS

NATIONAL HOSPITAL INSURANCE FUND

SACCO SOCIETY LIMITED..................................................RESPONDENT

RULING

1. The Application for determination is for striking out the Respondent’s defence.

The Application is dated 21. 10. 2020 and is brought under Section 1A, 1B and 3A Civil Procedure Act Cap 21 and Order 51 Rule 1 Civil Procedure Rules, Order 36 Rule (1) (1)and all other enabling provisions of the law.

The Application seeks for the following Orders:

a. That this Honorable court be pleased to strike out the Respondent’s defence herein dated 12th January 2021 and order that judgment be entered in favour of the Claimant against the Respondent as prayed for in the Statement of Claim plus costs and interest thereof.

b. That the Respondent to pay costs of this Application.

c. That the Honourable court be pleased to issue any other relief that it may deem fit.

2. The same is premised on the grounds on the face of the Application and supported by Affidavit of ABUKAR OSMAN ABDALLA sworn on 21. 10. 2020 to which he averred that the evidence the Applicant has adduced through his list of documents dated 20. 12. 2019filed on 7. 2.2020 clearly shows he has a strong case against the Respondent.

The Respondent Statement of Defence is a sham and is aimed at delaying the course of justice as it is founded on more denials. The Respondent in his defence has not denied the Applicant has contributions with them and that he did notify the Respondent of his intention to withdraw from the society vide a letter dated 15. 4.2019.

The only base of contention is that the Respondent claims there is share capital which ought not to be refunded and Applicant therefore prays for Summary Judgment against the Respondent.

Parties were directed to file written submissions to dispose off the Application.

The Claimant/Applicant filed their submissions dated 6. 4.2021 on 10. 5.2021 and Respondent filed their written submissions dated 26. 5.2021 on 2. 6.2021which have been taken into consideration.

3. Analysis

Order 13 Rule 2 Civil Procedure Rules 2010 clearly state

“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties ; and the court may upon such application make such order, or give such judgment, as the court may think just. “

The Claimant/ Applicant submits that the Respondent in paragraph 3 of their defence admits that the Claimant shares are Kshs.817,000/= less share membership capital of Kshs. 20,500/=. They stated the case should be determined summarily.

The Respondent on the other hand submitted the law governing striking out of pleadings is founded in Order 2 Rule 15 Civil Procedure Rules 2010 which states :

“ (1) at any stage of the proceedings the court may order to be struck out or amended any pleading on the grounds that:

a. It discloses no reasonable cause of action or defence in law; or

b. It is scandalous, frivolous or vexatious; or

c. It may prejudice , embarrass or delay the fair trial of the action; or

d. It is otherwise an abuse of the process of the court;”

They stated the Claimant seeks for Kshs. 817,000/= which is disputed however, the Respondent did not plead any liabilities against the Claimant.

This is a matter for refund, and it’s clear that the Claimant was making contributions as per the Statement of Account.

The issues to be determined are:

Issue One:

Does the defence raise triable issues ?

ISSUE ONE

A cursory perusal of the Respondent’s defence shows a defence that is purely full of denials. By that fact alone they offer nothing else but a defence for the Respondent.

The principle that guide the court in determining whether to strike out a pleading were set out in the case of :

“ DT Dobie & company (Kenya) Limited – vs- Joseph Mbaria Muchina and Another CA 37 of 1978 [1980]eKLR.

Madan JA stated:

“...the court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable case of action on being otherwise an abuse of the process of the court.....”

The case by Respondent in their submissions

Transcend Media Group Limited - vs- IEBC[2015] eKLR court held:

“... striking out of a case and in the process, deprive a party of the opportunity to present their case has been held over and over the years to be a draconian measure which ought to be eyed only as a last resort and even the only in the clearest of case.”

We note that this is a clear case where the Claimant made monthly contributions which are now claimed and due. The Respondent did file their written submissions dated 26. 5.2021 on 2. 6.2021. The only issue raised in the defence is the deductible amounts (non-refundable) Kshs.20,500/=.

The Respondent did not file any documents with the Replying Affidavit to show that the Claimant has any liabilities in terms of guarantorship or loans. The defence therefore amounts to a mere denial and the only issue raised is the non- refundable amount of Kshs.20,500/= .

We therefore allow the Application dated 21st October, 2020 in the following terms:

1. Judgment is entered in favour of the Claimant against the Respondent for Kshs.817,000/= less Kshs.20,500/= total Kshs. 796,500/= plus costs and interest in the suit from the date of judgment/Ruling.

Ruling signed, dated and delivered virtually at Nairobi this 29thday of July, 2021.

Hon. B. Kimemia Chairperson Signed 29. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 29. 7.2021

Mr. Gitonga Kamiti Member Signed 29. 7.2021

Tribunal Clerk Charles Maina

Kemunto Advocate for Claimant: Present

Omangi Gichane Advocate for Respondent: Present

Hon. B. Kimemia Chairperson Signed 29. 7.2021