https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/310

REPUBLIC OF KENYA IN THE COOPERATIVE TRIBUNAL AT NAIROBI TRIBUNAL CASE NO. 54 OF 2021 (Coram: Hon. J. Mwatsama- Ag. Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.) BACISTA SAVING AND CREDIT COOPERATIVE SOCIETY LTD.……….CLAIMANT/DECREE HOLDER -VERSUS- REUBEN MUCHEKE.………….……….……….................1ST RESPONDENT/JD FRANKLIN MULEMBA..……….……….………............. 2ND RESPONDENT/JD WILSON MAINA KIAI…….…….……….………............3RD RESPONDENT/JD ZACHAEUS WEKESA..……….……….……….................4TH RESPONDENT/JD CTC NO. 54 OF 2021 RULING 1 RULING 1. This ruling dispenses with the 2nd Respondent’s Notice of Motion Application dated 6th November 2025 supported by an affidavit sworn by FRANKLINE MULEMBA, the 2nd Respondent/Applicant and brought under Articles 48 and 50(1) of the Constitution of Kenya, Section 1A, 1B and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 22 Rule, and Order 51 Rule 1 of the Civil Procedure Rules. The application seeks the following orders: 1. Spent. 2. That the warrants of arrest dated 26th November 2024 issued against the 2nd Respondent be recalled, lifted and/or set aside forthwith. 3. That the exparte judgement, decree, and consequential orders issued against the 2nd Respondent be set aside. 4. That the 2nd Respondent be granted leave to defend the claim and file his response out of time. CTC NO. 54 OF 2021 RULING 2 5. That the Costs of the Application be provided for in the Cause. 2.The application is premised on the grounds on its face, which are inter alia that: the 2nd Respondent was never personally served or notified of the proceedings and that that he first learned of the case on 5th November 2025, nearly one year after the warrants were issued when a police officer attempted to execute the warrants. That he has acted promptly and in good faith upon learning of the existence of the decree. That the Applicant has a valid and arguable defence and that it is in the interest of justice that the ex-parted judgement and all consequential orders be set aside. 3.The Claimant filed a Replying Affidavit dated 28th November 2025 sworn by one Daniel Ngatia, the Chairman of the committee of the Claimant. Their response is that the Application as drawn is incompetent and the same ought be dismissed. They aver that the 2nd Respondent was served with the amended Statement of Claim dated 21st July 2022 and the mention notice dated 1st CTC NO. 54 OF 2021 RULING 3 August 2022, and an electronic mail service delivery receipt received on 28th July 2022. That the 2nd Respondent was also served with a notice to show cause dated 8th October 2024, and a hearing notice dated 18th October 2024 and that an electronic mail service delivery received confirming receipt. That in all these instances the Respondent was served through his personal email address franklinmulemba@gmail.com which was provided by the 2nd Respondent himself when he was still one of the Claimant’s official. That in all these instances, the 2nd Respondent did not appear, or file any response. 4.The Applicant filed a Replying Affidavit dated 15th April 2026. In the Replying Affidavit, the Applicant admits that the email address franklinmulemba@gmail.com belongs to him, however, that the same was solely opened for the purposes of KRA Itax registration by a cyber café, and that he has never used the same since it was opened and he does not even have its opening details. That he retired in 2020 and went to the village to live a simple life. That the email address used by the Claimant was not CTC NO. 54 OF 2021 RULING 4 a valid or effective means of communication at the time of the alleged service in 2022 and 2024. He questioned why the Claimant chose service upon an abandoned email, while they had his active mobile phone number and even new his rural home. 5.The matter was to be canvassed by written submissions and only the 2nd Respondent filed his submission. 6.In his submisions, the 2nd Respondent, relying on the case of Patel v E.A. Cargo Handling Services Ltd (1974) EA 75, submits that the discretion to set aside an exparte judgement is intended to avoid hardship or injustice to the Defendant. Further that the Applicant faces imminent arrest and committal to civil jail for a debt of Kshs. 30,371,107.62 that he disputes, and to imprison a person without giving them an opportunity to be heard is a grave violation of their fundamental rights. Further, that they have a Defence that raises triable issues. ISSUES FOR DETERMINATION CTC NO. 54 OF 2021 RULING 5 7.The application has presented the following issues for determination; i. Whether the applicant has satisfied the court to set aside the default judgement entered by this Tribunal on 28th March 2023. ANALYSIS 8. The issue in this case is that the Applicant claims that he was not properly served with the service to enter appearance, while there is an affidavit of service on record. The affidavit of service filed by a court process server is enough evidence to show that service was duly done. This was evidenced in the case of SHADRACK ARAP BAIYWO – VS – BODI BACH [1987] eKLR, where the Court of Appeal held as follows:- There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an CTC NO. 54 OF 2021 RULING 6 affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings. 9. It is now upon the person alleging that service was not done to show that indeed such affidavit of service was defective. 10. It is trite law that service by email is accepted and recognized under the Civil Procedure Amendment Rules under Order 5 Rule 22B which provides as follows, 1. Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E- mail address. 2. Service shall be deemed to have been affected when the Sender receives a delivery receipt. 3. Summons shall be deemed to have been served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction CTC NO. 54 OF 2021 RULING 7 sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent. 4. An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service. 11. In the instance case, it is not disputed that the Applicant owns the email address franklinmulemba@gmail.com. It is also not disputed that the Claimant served the pleadings via the above email address. What is disputed is whether that was the appropriate way of service. The Applicant avers that the email address was created solely for registering for Itax with the Kenya Revenue Authority and that it has never been accessed or used. The Applicant also averred that the Claimant got the email address through his KRA Pin. The Claimant does not dispute that he got the details in the KRA PIN and indeed the PIN certificate is CTC NO. 54 OF 2021 RULING 8 one of the documents submitted by the Claimant as Annexure DN-3. 12. We note that the email address that was used by the Claimants in effecting service was indeed retrieved from the Applicant’s PIN Certificate, and that it was not submitted by the Applicant for the purpose of communication. If indeed the email was created for the sole purpose of operating ITAX by the Applicant, then it is highly probable that the same is not accessed by the Applicant frequently, noting that he has since retired and went to the village. The Claimants have also not informed this Tribunal why they did not effect service via the Applicant’s phone which the Applicants claim that the Claimant must have. Order 5 Rule 22B(1) provide that ……“Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.” In this instance case, there is no evidence of confirmation or use of the email address. This Tribunal is, therefore, inclined to give a benefit of doubt to the applicant that he did not receive the service. CTC NO. 54 OF 2021 RULING 9 13. In the upshot, we find the Notice of Motion Application dated 6th November, 2025 merited and we order as follows; a) The interlocutory judgement entered on 28th March 2023 for the Claimant against the 2nd Respondent, is hereby set aside. b) The Applicant is to pay the Respondent thrown away costs of Ksh. 15,000/- 14 days from today. c) The Applicant to comply with pre-trial within 14 days of this Ruling. Statement of Defence, Witness statement and List of Documents. d) Each party to bear their own costs. Ruling dated and delivered virtually at Nairobi this 30th day of June, 2026. Hon. J. Mwatsama 30.6.2026 Chairperson signed Hon. Beatrice Sawe 30.6.2026 Member signed Hon. Fridah Lotuiya 30.6.2026 Member signed CTC NO. 54 OF 2021 RULING 10 Hon. Michael Chesikaw Member signed 30.6.2026 Hon. P. Aol 30.6.2026 Member signed Tribunal Clerk Mutai Kirui for the Claimant. Kyalo Kiema advocate for 2nd Respondent. Mayoye for the 4th Respondent. Kimathi Kamencu for the 1st Respondent KIRUI : 3rd Respondent was discharged from this suit. TRIBUNAL ORDERS: 1. Parties to comply 14 days. 2. Mention pretrial directions on 14.10.2026. Hon. J. Mwatsama Chairperson signed 30.6.2026 CTC NO. 54 OF 2021 RULING 11