[2023] KECPT 910 (KLR)

Anyolo v Chuna Tunda Sacco Society Ltd (Tribunal Case 147 of 2020) [2023] KECPT 910 (KLR) (Commercial and Tax) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 910 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Commercial and Tax

Tribunal Case 147 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

September 21, 2023

Between

Truphena Angila Anyolo

Claimant

and

Chuna Tunda Sacco Society Ltd

Respondent

Ruling

1. The Application dated 17/5/2022 filed on 19/5/2022. The same is brought under Sections 1A and 3A if the Civil Procedure Act (Cap. 21 Laws of Kenya), Under Order 51 Rule 1 of the Civil Procedure Rules, Article 48 and Article 159 (2) of the Constitution of Kenya, 2010 and all other enabling provisions of the law.The Application sought for orders;a.Spent.b.That this Honourable Tribunal be pleased to arrest and/or stay the further proceedings herein and the delivery of the judgement scheduled for 18th August 2022. c.That there be a stay of further proceedings in this suit pending the hearing and determination of this Application.d.That the Honourable Tribunal be pleased to enlarge time and give the Respondent an opportunity to adequately defend their interest in the matter.e.That the costs of this application be provided for.The Application is supported by Supporting Affidavit of David Chege Sworn on 17/5/22, where he averred that he is the Advocate for the Respondent/Applicant and that the Applicant had on 15/4/2020 filed an Application and on 16/4/2020 the Court gave directions.However it was the onset of Covid 19 and the Court directed parties to go back after resumption of normalcy.

2. On 30/4/2020 the Applicants proceeded to file their Notice of Appointment and Statement of Defence filed on 29/1/2022. The Respondent/Applicant was not served with any dates on hearing notices. It only came to the Respondent/Applicants attention that there was a mention date set for 19/8/21 and hearing date set for 19/4/22 and Judgement date set for 18/8/22. The Applicant avers service was not due and the Interlocutory Judgement was entered without following procedure; thus the Prayer is for Judgement entered against the Respondent/Applicant to be set aside.

3. The Claimant Respondent filed a Replying Affidavit sworn on 27/9/2022 and stated she acted in full compliance and served the Respondent/Applicant on 23/4/2020 and filed Affidavit of Service to demonstrate that proper service was done thus Respondent/Applicant filed Memorandum of Appearance dated 30/4/2020 and despite that they did not effect service on Claimant Advocate's firm.Despite filing Memorandum of Appearance in the year 2020 (30/4/2020) a Defence was only filed on 1/2/2022. Close to two years in disregard to court directions. That the Statement of Defence is irregular as Claimant/Respondent had requested for judgement on 22/7/21 which was in the dates. Further, the Claimant/Respondent avers the Statement of Defence does not raise any triable issues and is only a mere denial thus does not warrant stay/ arrest of judgement.The Claimant/Respondent had no obligation to serve Respondent/Applicant for formal proof. As such the Claimant Respondent state the Applicant's Application is an afterthought and has gone before the Tribunal with unclean hands. As such, the Application is to be dismissed with costs.

4. Parties filed their Written/Submissions to canvass the Application and Respondent/Applicant filed their Written Submissions dated 17/5/2022 on 17/6/2022 and Claimant/Respondent filed their Written Submissions on 21/10/2022 on 16/11/2022. Having looked into the pleadings and Submissions by both parties, the issue for determination herein.

Issue One Whether there was proper service upon the Respondent/Applicant.Order 10 Rule ­­ Civil Procedure Rules states;“A Plaintiff must prove that the Defendant(s) were duly served, and an Affidavit of Service filed in Court, as proof of such service so as to request interlocutory judgement."In the current case it is not in doubt the Respondents were aware of the Case as documents would evidence they entered Appearance vide Memorandum of Appearance dated 30/4/2020. For sure the service was satisfactory, what the Respondent/Applicants are alluding is service on later days for Formal Proof and mention.However, the Claimant/Respondent aver once Interlocutory Judgement is entered for failure by Respondents to enter appearance, there is no further need of service upon themWe note that Defence was later filed almost two years later. Infact the same was after Interlocutory Judgment had been entered.The question is, is the Defence filed by Respondent/Applicant on 29/1/22 properly on record?Interlocutory Judgment was entered on 19/8/2021. The Defence therefore cannot be taken to be properly on record. 5. As such the judgment entered therein is a regular Judgment.A Regular Judgment was Addressed in the case of Mwata vs Kenya Bureau of Standards EA LR [2001] 1 EA 148 where the court stated;“to all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgement. Where the Judgement sought to be set aside is a regular one, then all the above considerations as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand the Judgement sought to be set aside is as irregular one, for instance, one obtained where there is no proper service, or any service at all of the summons to enter appearance or Defence on record but the same was inadvertently overlooked, the same ought to be set aside not as a matter of discretion but ex debito justiciae for a should never and irregular judgement on its record."As such we have looked into the Statement of Defence in the matter. The same does not raise issues that seem triable.

6. Litigation must come to an end. As such we are not convinced with Applicant's sentiments that the Interlocutory Judgement is to be set aside.No sufficient reason has been given to convince or Warrant us to set aside the Judgment.As such, the Application is found to be without merit and dismissed with costs to the Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHMugo advocate fort the Respondent.Kavue advocate for the ClaimantRULING DELIVERED ON 21. 9.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023