[2021] KECPT 546 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.118 OF 2020

AGNES AMEYO..........................................................................CLAIMANT

VERSUS

NATIONAL HOSPITAL INSURANCE FUND

SAVINGS & CREDIT SOCIETY LIMITED.....................RESPONDENT

RULING

Vide the Application dated 10. 8.2020, the Respondent has moved this Tribunal seeking for following Orders:

a. Spent;

b. Spent;

c. That pending the hearing and determination of this Application there be a stay of execution of the judgment entered on 28th July, 2020 and all consequential Orders thereto;

d. That this Honourable Court do set aside the exparte interlocutory judgment entered against the Defendant on the 28th July 2020 and all Consequential Orders and that the Defence filed herein be deemed as properly filed and served; and

e. That such further or other Order be made as may seem just to this Honourable Court.

The Application is supported by the grounds on its face and the Affidavit sworn by Purity Makori, Advocateon 10. 8.2020. The Claimant has opposed the Application by filing a Replying Affidavit sworn by herself on 24. 8.2020.

Vide the directions given on 14. 8.2020, the Application was canvassed by way of written submissions. The Respondent filed its submissions on 11. 9.2020 while the Claimant did so on 22. 9.2020.

Respondent’s Contention

The Respondent has sought to set aside the default judgment entered on 28. 7.2020 on the ground that it presented a memorandum of Appearance and Defence for assessment and filing to the Tribunal’s customer care email cooptribunal. customercare@gmail.com but did not receive communication until 4. 8.2019 when it was served with Notice of entry of judgment in the matter.

That it is in the interest of justice for the ex-parte judgment to be set aside.

Claimant’s Contention

The Claimant has opposed the Application on the grounds that by the time judgment was entered in the matter, there was no Appearance or Defence. As such the judgment is regular.

Issues for determination

The Respondent’s Application dated 10. 8.2020 has presented the following issues for determination:

a. Whether the Respondent has established a proper basis to warrant the setting aside of the default judgment entered on 28. 7.2020;

b. What Orders are available in the circumstance?

Setting aside of default Judgment

We have jurisdiction to set aside a default judgment by dint of Order 10 Rule 11 of the Civil Procedure Rules. The Rule provides thus:

“ Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential Decree or Order upon such terms as are just.”

In the case of Patel – vs- East Africa Cargo Service Limited (1974)EA 75, the Court underscored this provision in the following terms:

“ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules.”

Before we can exercise our jurisdiction under Order 10 Rule 11 above, we firstly have to ascertain whether the default judgment is a regular or irregular one. If the Judgment is an irregular one, then we will set it aside ex debito justiciae.

This was the holding in the case of K- Rep Bank Limited -vs- Segment Distributors Limited [2017] eKLR.

The court in the case of Fidelity Commercial Bank Limited – vs- Owen Amos Ndungu & Another, HCC.NO. 241/1998 gave a distinction between a regular and irregular judgment as follows:

“ A distinction is drawn between regular and irregular judgments. Where summons to enter Appearance has been served and there is default in entry of Appearance the ex parte judgment entered in default is regular. But where the exparte judgment sought to be set aside is obtained either because there was no proper service or any service at all, of the summons to enter Appearance, such judgment is irregular and the affected Defendant is entitled to have it set aside as of right”

Where the default judgment is regular, then the Tribunal has to consider if the draft Defence filed with the Application raises triable issues. This was the holding in the case of James Kanyiita Nderitu & Another - vs- Marios Philotas Ghikes & Another [2016]eKLR. In the pertinent part, the court held thus:

“ In a regular default judgment, the Defendant will have been duly served with summons to enter appearance, but for one reason or another, he failed to enter appearance or to file a Defence, resulting in default judgment. Such a Defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules to move to court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as to the reason as for the failure of the Defendant to file his memorandum of Appearance, or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended Defence raises triable issues, the respective prejudice each party is likely to suffer whether on the whole, it is in the interests of justice to set aside the default judgment.”

Determination

We have considered the instant Application vis-à-vis the opposition by the Claimant. What is apparent is that the Respondent was ready to defend the claim as early as 27. 7.2020. We have perused the email communication from the Advocate on record for the Respondent dated 27. 8.2020. In the pertinent part, it read:

“ Dear Co-operative Tribunal, Please find attached memorandum of Appearance and the statement of Defence for the above files. Kindly assess the fees payable.”

We have also perused the follow –up email sent to us on 29. 7.2020. It reads :

“ Dear Co-operative Tribunal, I am yet to get a response to the filed below herein attached.”

From the foregoing, it is apparent that the Respondent cannot be wholly blamed for not entering Appearance and filing a Defence in good time. The delay is partially blamed on the Tribunal as there seems to have been no response to their request for assessment of the documents filed. In the circumstances, we are satisfied that the reasons advanced for not entering Appearance in good time are reasonable.

Conclusion

In the circumstances, we allow the Respondent’s Application dated 10. 8.2020 in the following terms:

a. The default Judgment entered on 28. 7.2020 is hereby set aside with no Orders as to costs.

b. The Respondent is granted leave of 14 days to file a statement of Defence as well as witness statements and list and bundle of documents.

c. The Claimant to file and serve a Reply to the Response as well as supplementary bundle of documents and witness statements ( if need be)

d. Mention to confirm compliance and fixing a hearing date on 16. 3.2021

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JANUARY, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Mr. Chacha Advocate holding brief for Miss Makori for Respondent: Present

Notice to issue.

Hon. B. Kimemia Chairperson Signed 28. 1.2021