[2023] KECPT 430 (KLR)
The Tribunal found that the Respondent had indeed filed a Statement of Defence within the prescribed time, as confirmed by both the Claimant and the Tribunal's own records. Consequently, the ex parte judgment entered on July 9, 2021 was erroneously sought and entered. The Tribunal exercised its discretion to set...
Source-derived case information.
- Citation
- [2023] KECPT 430 (KLR)
- Parties
- Applicant: Achin Sacco Limited; Respondent: Solomon Mwangi Mugo
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 488 of 2020
- Procedural Posture
- Civil Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application granted; ex parte judgment set aside.
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Setting Aside Ex Parte Judgment, Default Judgment, Filing of Defence, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Achin Sacco Limited
Applicant
Solomon Mwangi Mugo
Respondent
Procedural Posture
Civil Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered on July 9, 2021 should be set aside.
- 2 Whether the Respondent filed a Statement of Defence within the prescribed time.
- 3 Whether the Respondent should be allowed to liquidate the sum due in installments.
Ratio Decidendi
The Tribunal found that the Respondent had indeed filed a Statement of Defence within the prescribed time, as confirmed by both the Claimant and the Tribunal's own records. Consequently, the ex parte judgment entered on July 9, 2021 was erroneously sought and entered. The Tribunal exercised its discretion to set aside the default judgment, holding that it was improper to enter judgment in default when a Defence was already on record. The application to set aside the judgment was granted, and the parties were directed to file witness statements and documents within 21 days, with a mention for pre-trial directions scheduled.
Court Disposition
Application granted; ex parte judgment set aside.
Orders
- The application dated February 2, 2022 is granted; judgment entered on July 9, 2021 is set aside; costs in the cause.
- Parties to file witness statements and documents within 21 days.
Full Case Text
Judgment text and source record
22 paragraphs
Achin Sacco Limited v Mugo (Tribunal Case 488 of 2020) [2023] KECPT 430 (KLR) (Civ) (27 April 2023) (Ruling)
Neutral citation: [2023] KECPT 430 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 488 of 2020
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
April 27, 2023
Between
Achin Sacco Limited
Claimant
and
Solomon Mwangi Mugo
Respondent
Ruling
1. This Ruling is for the Respondent’s Notice of Motion dated February 2, 2022 and filed on February 3, 2022.
2. By its Notice of Motion, the Respondent seeks the following orders:a.Spentb.That the ex parte judgment herein be stayed pending the hearing and disposal of this application.c.That the Respondent be allowed to liquidate the sum due in reasonable monthly installments to be approved by the Tribunal.d.That the costs of this application be in the cause.
3. The Motion is supported by an Affidavit sworn by the Respondent, Solomon Mwangi Mugo. In his affidavit, the Respondent depones that he was served with the summons to enter appearance on March 22, 2021 and filed a Memorandum of Appearance on the same day March 22, 2021. He further contends that he filed a statement of Defence on March 31, 2021.
4. In her Replying Affidavit dated February 22, 2022, the Claimant’s advocate does not dispute that the Respondent filed a Statement of Defence and indeed confirms that a Statement of Defence was filed.
5. The Tribunal confirms from its record as well that the Statement of Defence was indeed filed by the Respondents within time.
6. In the upshot, the judgment in default entered on 9th of July 2021 was erroneously sought by the Claimants and erroneously entered and is hereby set aside with the following orders:i.Application dated February 2, 2022 is granted, Judgment as entered on July 9, 2021 is accordingly set aside costs in the cause.ii.Parties to file Witness Statement and Documents within 21 days herein.iii.Mention for Pre-trial directions on July 10, 2023.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aoi Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahMulei advocate for the ClaimantMbago advocate for Respondent/ApplicantHon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023