[2021] KECPT 29 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT MOMBASA

TRIBUNAL CASE NO. 109 OF 2021

BENARD MOKUA MINGATE......CLAIMANT

-VERSUS-

KEN KAZI SACCO LTD...........RESPONDENT

RULING

1. The Respondent has filed A Notice of Motion Application dated 10th May 2021, seeking orders to set aside the Judgment entered in default of Appearance of the Respondent. The evidence on record indicates that the Respondent was duly served with Summons to Enter Appearance. Consequently, the Claimant filed a Request for Judgment on Unknown to the Claimant, the Respondent had filed a Statement of Admission dated 3rd March 2021.

2. The Respondent posits that the ex parte judgment was entered irregularly, since there was on record some sort of Defence, to wit, the Statement of Admission, which the said Respondents argue raises triable issues.

3. We have read and considered the Pleadings and submissions of both parties, and we hereby render our decision on the said Application. We have also considered the provisions of Law in view of the Application, most notably, Order 10 Rule 11 of the Civil Procedure Rules, 2010 which gives this Tribunal very wide discretion in view of setting aside Judgments in Default.

4. This Tribunal notes that the issue of service of Summons is not contested. It is the response to the Statement of Claim that needs adjudication thereupon. It is not contested that there was filed a Statement of Admission dated 3rd March 2021,which was 13 days from the date of service of the said Summons, according to the Affidavit of Service deponed by one Thomas Joshua Were on 8th March, 2021.

5. It would appear that by the said Statement of Admission, the Respondent was making an appearance in the cause. It therefore would seem that the Judgment is voidable – not void. What makes the Judgment voidable is the contents of the Defence [read Statement of Admission]: if there is a justiciable point in the Defence, then this Tribunal would not hesitate to bring the matter for inter parties hearing and adjudication. However, if the Defence does not raise any triable issues, this Tribunal will not tamper with its Judgment, as it would be tantamount to postponing the inevitable.

6. In the Statement of Admission, the Respondents have outlined mere denials, and a general traverse, not capable of being considered a defence at all. This Tribunal is not persuaded that reopening the present case would convey a different outcome. We thus find that the Judgment stands.

7. We shall now interrogate the conduct of the parties, in order to analyse the proposal for payment by instalments. In the Statement of Admission dated 3rd March 2021, the Respondent has given a proposal of settlement of the monies owed to the Claimant in instalments of Kshs. 15,000/=. As at the date of this Ruling, the Respondent has not shown any payment done in line with what they proposed, as a sign of good faith.

8. As was decided in the case of KTK Advocates -vs- Baringo County Government [2018] eKLR, which case we hereby cite with Approval, the Respondent’s demonstration of good faith would tilt the scales in their favour towards their prayer for payment in instalments. When this Tribunal issued a Stay of Execution Order, it did not mean that the Respondent was being absolved from their liability, and good faith would have the Respondents attempt to liquidate the decretal sum. But the Respondent did not. We therefore find the proposed payment by instalments implausible

9. We agree with the Claimant that the Respondent has failed to demonstrate why the decretal sum cannot be paid in a lumpsum, by way of statements and books of account. The Respondent has not attempted to discharge their burden of proof that they are incapable of paying the decretal sums in full at once. The prerequisites of Order 21 Rule 12(1)and(2) have not been satisfied. This prayer must also fail.

ORDERS

We therefore Order as follows:

a. The Respondent’s Applications dated 10th May 2021 be and is hereby dismissed;

b. Each Party to bear their own costs.

RULINGSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 2021

Tribunal Clerk R. Leweri

No appearance by both parties

Ruling delivered in absence of both parties.

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021