[2021] KECPT 578 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 624 OF 2019

AGNES KASWII MUIA.............................................................................CLAIMANT

VERSUS

URITHI HOUSING COOPERATIVE SOCIETY LIMITED............RESPONDENT

RULING

1. The Application for consideration before the Tribunal is Notice of Motion dated 14. 10. 2020 and filed in court on 16. 10. 2021.

The said application seeks for orders:

1. The Respondent ‘s statement of Defence dated 26. 2.2020 and filed on 26. 2.2020be struck out.

2. That judgment be entered against the Respondent as sought in the statement of claim.

3. Costs.

2. The said Application is supported by the Affidavit of Agnes Kaswii Muiaon grounds.

a. Defence was filed out of stipulated statutory timelines and without leave of court.

b. Statement of Defence is a sham and consists mere denials and discloses no reasonable Defence.

c. Defence raises no triable issues.

d. Defence is set to delay for determination of matter/claim.

3. The Application was opposed by the Respondents filing a Replying Affidavit by one Samuel Ngundo Maina which was sworn on 18. 11. 2020 and filed on 20. 11. 2020 to which they state amongst other grounds.

(i) Order 5 Rule 3 Civil Procedure Rule 2010 was not followed.

(ii) Claimant/Applicant had not requested for judgment by the time statement of Defence was being filed.

(iii) Technicalities

(iv) Application does not meet threshold of Order 2 Rule 15.

4. Parties were directed to canvass the Application by filing written submissions.

Claimant/Applicant filed their written submissions dated 17. 2.2021 and on 22. 2.2021.

Respondent filed their submissions dated 24. 3.2021 on 25. 3.2021.

Issues one:-

5. The issues for the court’s determination is whether the Respondent’s statement of Defence as filed raises no reasonable Defence and is a sham warranting the court to struck it out.

A brief analysis of the statement of Defence :

(i) It is true the Claimant is a member of the Respondent’s society with membership number 19435.

(ii) It is true that the Respondent agreed to sell an apartment off-plan to the Claimant which was to be transferred to her upon her complying with the laid down terms as contained in the sale agreement which she voluntarily executed.

(iii) From the onset, the Claimant was aware of the model employed by the Respondent which entails purchase of a big chunk of land, inviting members to make booking of the plots by paying deposits. After payment of the said plots, the land would be subdivided into plots which would eventually be transferred to the members upon completion of paying the entire purchase price as well as conveyancing fees.

(iv) By being a member of the Respondent, the Purchaser understood or ought to understand the model’s rules and regulations formulated and approved for the use by the Respondent for the benefit of its members.

(v) The Claimant is yet to complete payments of the purchase price as well as conveyancing fees which would enable the Respondent transfer the property to her.

The claimant is entitled to an apartment after she has completed payment of the arrears.

(vi) The issues of refund does not occur since the amount was used to pay a deposit to the owners of the land as well as payment of surveyors’ expenses and other expenses. The money is already sunk in the project.

That is the only paragraph which drew interest and gave issues why the Respondent is defending the claim.

We would state the other paragraphs are “ clandestine” paragraphs in Defence, general denials of the respective paragraphs.

6. Question - does the Respondent have a reasonable Defence?

Order 2 Rule 5 (2) provides that no evidence shall be admission on an application under sub rule (1) a

Our obligation therefore as the court is to look at the pleading as filed and not go into the merits of it

7. Should the Defence be struck out?

Question of whether a defence raises a prima facie triable issue was discussed in.

Olympic Escort International Company Limited & 2 others - vs- Parminder Sigh Sandhu & Another [2009] eKLR.

The Court of Appeal stated “ it is trite that a triable issue is not necessarily on that the Defendant would ultimately succeed on. It need only be Bonafide.....”

Ramji Megji Gudwa Limited – vs- Alfred Mufart Omondi Michira & 2 others [2005] eKLR.

The court held :

“In our view, the power to strike out pleadings must be sparingly exercised. It can only be exercised in the clearest of cases, the issue of summary procedure and striking out of pleadings was given very careful consideration by this court in DT Dobie & Company (Kenya) Limited -vs- Muchina 1982 KLR 1 in which Madan J.A at paragraph 9 said:

“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”

8. Issue two:

The effect of filing Defence out of stipulated time lines.

The Claimant/Applicant had opportune time to file/apply for interlocutory judgment when Respondent failed to file Statement of Defence within the 15 days as stipulated in the summons to Enter Appearance.

Equity aids the vigilant and not the indolent.

It would not be right to struck out a defence properly on record on account of lateness and no steps were taken to ensure the same was not filed without leave to court.

Indeed we find the same is an afterthought.

Determination

We have considered the Application, Affidavits both in support and in opposition to the Application as well as the submissions and authorities cited.

The orders issued are as follows:-

(i) The Statement of Defence filed on 26. 2.2020 is properly on record.

(ii) The Application dated 14. 10. 2020 is dismissed

(iii) Costs in the cause.

(iv) Parties to file and serve witness statement and documents within 30 days herein.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Miss Gitau for Respondent: Present

No appearance for Claimant

Mention on 27. 7.2021. Notice to issue.

Hon. B. Kimemia Chairperson Signed 27. 5.2021