Akinyi v Radar Savings & Credited Society Ltd (Tribunal Case 274/E323 of 2024) [2026] KECOPT 267 (KLR) (15 June 2026) (Ruling)

Akinyi v Radar Savings & Credited Society Ltd (Tribunal Case 274/E323 of 2024) [2026] KECOPT 267 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KECOPT 267 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 274/E323 of 2024 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 15, 2026 Between Millicent Akinyi Claimant and Radar Savings & Credited Society Ltd Respondent Ruling 1.This ruling is emanating from the respondent’s notice of motion dated 19th March 2026 seeking for the following orders:a.That the application be certified as urgent and be dispensed with in the first instance.b.That the tribunal to grant a temporary stay of the ex-parte judgement entered on 26th June 2025 against the applicant and all the consequential orders and decree until the application is heard and determined.c.That pending the hearing and determination of the application, the tribunal be pleased to stay, vacate, review and /or set aside its ex-parte judgement of 26th June 2025.d.That the respondent be allowed to defend the suit unconditionally.e.That the show cause issued against the Chairman and the Secretary on 24th November be lifted, set aside and/or vacated pending the hearing and determination of this applicationf.That the cost of this application be provided for. 2.The application is supported by an affidavit sworn by Samson Otieno Bonde – the Chairman of the applicant; and premised on the ground that the respondents were not served with summons to enter appearance, the statement of claim and the notice of entry of the judgement. The respondents further contend that they have a good defence to the claimant’s claim which ought to be ventilated at a full trial. Ultimately the respondents filed a draft of their statement of defence. Response 3.The claimant’s advocate Diana Odero swore an affidavit of service dated 19th June 2024 to the effect that on 14th June 2024 she went to the offices of the respondent located at Kabarnet road, Kibera Sub-County Nairobi and found that the respondents had relocated to Somali Hotel building 3rd floor- Kenyatta Market. However, she was given the email address of the SACCO as radarsacco@gmail.com and the telephone numbers of the SACCO officials by the Secretary of the company. 4.That at 12.13 pm on the same day of 14th June 2024 she served the SACCO through their email address radarsacco@gmail.com with the claimant’s statement of claim, the verifying affidavit, a witness statement, the list of witnesses and the summons to enter appearance. That on 19th June 2024 at 15.22pm, she served the Chairman of the SACCO with the same set of documents through WhatsApp on his mobile number 0725xxxxxx and further served the Secretary of the SACCO through his mobile No 0723xxxxxx. 5.As evidence of the service, extracts of the WhatsApp messages were annexed to the affidavit of service by the claimants. Claimant’s Written Submissions 6.The claimants submitted that the law governing service of pleadings via mobile messaging applications is provided under order 5 rule 22C (1) & (3) of the Civil Procedure Rule 2010. Sub Section (1) provide that:1.Summons may be sent by mobile-enabled messaging applications to the defendants last known and used telephone number.Sub-Section (3) provide that;“Service shall be deemed to have been effected when mobile enabled messaging services when the sender receives a delivery receipt.” 7.The claimant submitted that the respondents were served as evidenced by the WhatsApp delivery receipts but they choose to ignore. In addition, the draft defence does not raise any triable issue. Respondent’s Submissions 8.The respondents submitted that they were not served with summons to enter appearance together with the accompanying pleadings.They repeated that the respondent learnt about this case when their Chairman and the Secretary were served with a Notice to Show Cause on 4th March 2026 through a WhatsApp message through their mobile telephone numbers. 9.Further, they submitted that the WhatsApp receipts annexed by the claimant show some names but did not provide evidence of Mpesa extract to show the proper names of the persons served. At the same time the respondents submitted that they filed a draft defence which raises triable issues.Issuesa.Whether the tribunal should grant a temporary stay of the ex-parte judgement entered on 26th June 2026 and all the consequential orders and the decree?b.Who should bear the cost of this application? Analysis and Determination 10.Order 10 of the Civil Procedure Rule 2010 addresses the issue of consequences of no-appearance, default of defence and failure to serve a party. However, in the instant application, the claimant contends through a sworn affidavit of Diana Odero that she effected service of the summons to appear and the pleadings through electronic channels of email and WhatsApp. 11.Order 5 rule 22B and 22C of Civil Procedure Rules as amended 2020 provides for the procedure in which service of documents through electronic devices can be effected. First, the order permits that summons can be served by electronic devices to the defendants last known and used telephone numbers. Once the sender receives a delivery receipt, it is deemed that that the documents have been received. 12.The claimant filed screenshot copies of an email send on 15th August 2025 which forwarded the decree and advised the respondent to settle it within seven (7) days. On record is also another screenshot of an email forwarding the notice to show cause. On the flip side, the respondent does not deny this, but argue out that, from the beginning, they were not served with summons to enter appearance, the statement of claim together with other pleading. 13.Upon perusal of the email screenshots filed, there is nothing to show that the claimants emailed the summons to enter appearance, the statement of claim, the verifying affidavits, the witness statements and the list of documents despite the claimant’s averment under paragraph 4 of the affidavit of service that they served the documents at 12.13pm. The question that begs an answer is where is the evidence? If she could file the emails forwarding the decree and the Notice to Show Cause, why did she fail to file the email forwarding the summons and the annexures? 14.The claimant argue out that the Chairman and the Secretary of the respondents were served through WhatsApp of their mobile phones. On a closer scrutiny of the copies of WhatsApp filed by the claimant, there are no telephone number of the Chairman and the Secretary instead on top of each page there is a name written DS-Donde Chairman and JS Job-Secretary. The names Donde or Job could be any other persons in the SACCO or a commoner who is not a member or an official of the SACCO. On this, we agree with the respondents that there is no evidence on record in form of Mpesa extract to show that the mobile numbers used by the Claimant belong to the Chairman and the Secretary of the SACCO and the names displaced are actually their respective names. It is therefore our finding that there was no proper service of the summons to enter appearance by the claimant. 15.Rule 10 (1) of the Cooperative Tribunal (Practice and Procedure) Rules 2009 provide that:“The statement of claim together with the verifying affidavit and summons to enter appearance shall be served on the respondent.”This tribunal emphasize that service of the summons to enter appearance forms an imperative cog in the wheels of justice because it informs the other party/respondent that there is a case that need to be responded to. Proper service of summons is therefore indispensable and foundational without which a party may not know of the existence of a case.Further reliance is pleased in the case of Craig v. Kanssen (1943) KB 256, where:“The court stated that failure to serve summons is not a mere irregularity but a fundamental defect that renders subsequent proceedings a nullity.” 15.On setting aside a default judgment, order 10 rule 11 of the Civil Procedure Rules, stipulates 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.”All along, the claimant did not demonstrate the prejudice that she will suffer if the ex-parte judgement dated 26th March 2025 is set-aside. 16.In the interest of justice, we set aside the default judgement dated 26th March 2025 including the resultant decree emanating therefrom and all the consequential orders. We further direct the respondents to file and serve their responses to the statement of claim within 14 days from the day hereof. 17.Finally, we find that the notice of motion dated 19th March 2026 is merited and is hereby allowed.Final OrdersPrayer 1 ----------------- Spent.Prayer 2------------------ Merited and allowed.Prayer 3----------------- Allowed.Prayer 4--------------------Allowed.Prayer 5---------------------Merited and allowed.Prayer 6-------------------Cost of the application to be on cause.Mention for pre-trial directions on 16/9/2026 before the Assistant Deputy Registrar.Date 13/7/2026 – vacated. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 15/6/2026HON. BEATRICE SAWE - MEMBER SIGNED 15/6/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 15/6/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 15/6/2026HON. P. AOL - MEMBER SIGNED 15/6/2026Court Assistant - Mutai.Ms. Odera advocate for the Claimant/Respondent.Okerosi advocate for the Applicant/Respondent.