Bacista Saving and Credit Cooperative Society Ltd v Mucheke & 3 others (Tribunal Case 54 of 2021) [2026] KECOPT 308 (KLR) (30 June 2026) (Ruling)

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 4th Respondent’s Notice of Motion Application dated 15th December 2025 supported by an affidavit sworn by FRANKLINE MULEMBA, the 2nd Respondent/Applicant and brought under Section 3A and 80 of the Civil Procedure Act (Cap 21), Order 5 Rule 1, 2, and 3 and Order 12 Rule 7 of the Civil Procedure Rules 2010, Articles 20, 48 and 50 of the Constitution of Kenya 2010 and all other enabling provisions). The application seeks the following orders: 1. Spent. 2. That the Honourable Court be pleased to vacate and/or set aside warrants of arrest issued on the 26th November 2024 against the 4th Respondent. 3. That the Honourable Court be pleased to vacate and or set aside the ex parte Judgement rendered on the 14th December 2023 against the 4th Respondent and all consequential orders arising therefrom. 4. That the 4th Respondent be granted leave to file his Response to the Claim out of time. CTC NO. 54 OF 2021 RULING 2 5. That the Costs of this Application be provided for. 2.The application is premised on the grounds on its face, which are inter alia that: The Applicant was never served with the summons to enter appearance, Statement of Claim or any other notice indicating that the instant suit has been filed, and that he discovered the matter and the ex parte judgment on 28th October 2025 when he was arrested and taken into custody. That the Claimant has a plausible defence and he was condemned unheard. 3.The Claimant filed a Replying Affidavit dated 2nd December 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 4th Respondent was served with the amended Statement of Claim dated 21st July 2022 and the mention notice dated 1st 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 CTC NO. 54 OF 2021 RULING 3 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 wksp@vkk.co.ke and his WhatsApp mobile number being 0722562877 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 responses. 4.The Applicant did not file any further response. 5.The matter was to be canvassed by way of written submissions and only the Applicant filed his submission. 6.In his submissions, the Applicant avers that since he has demonstrated that he was not served, this Tribunal should set aside the judgement in default. Further that they have a Defence that raises triable issues. ISSUES FOR DETERMINATION CTC NO. 54 OF 2021 RULING 4 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 affidavit of the process server is admissible in evidence CTC NO. 54 OF 2021 RULING 5 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 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 CTC NO. 54 OF 2021 RULING 6 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. In the instance case, the Applicant claims that he did not receive the summons or any other document that was served upon him. The Claimant has provided delivery reports to the Applicant’s email, as well as a Safaricom Message showing that the phone number in which the Applicant was served bears the Applicant’s name. The Applicant has not provided any explanation on why he did not receive the summons as a way of rebuttal of the Claimant’s affidavit of service. He has not disputed owning the mail address wksp@vkk.co.ke or the phone number 0722562877 through which service was effected. He has not cast any doubt at all on the Claimant’s Affidavit of service. CTC NO. 54 OF 2021 RULING 7 11. Order 5 Rule 22B(1) further 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 evidence of use of the email address by the Applicant, that is not refuted, on December 18th 2018, in an email copied to the Claimant. 12. This Tribunal is convinced that the Applicant was properly served and that the Judgement in default is lawful and regular. 13. In the upshot, we find that the Notice of Motion Application dated 1st December 2025 lacks merit and the same is hereby dismissed with 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 Hon. Michael Chesikaw Member signed 30.6.2026 CTC NO. 54 OF 2021 RULING 8 Hon. P. Aol 30.6.2026 Member signed Tribunal Clerk Mutai Kyalo Kyema: 2nd Respondent was not aware we filed Notice of Motion dated 30.6.2026. I wish to withdraw the application. TRIBUNAL ORDERS: File Notice of withdrawal before end of day. Hon. J. Mwatsama Chairperson CTC NO. 54 OF 2021 RULING 9