[2022] KECPT 181 (KLR)

Co-operative Soc. Limited v Gakahu (Tribunal Case 65 of 2021) [2022] KECPT 181 (KLR) (Civ) (17 February 2022) (Ruling)

Neutral citation: [2022] KECPT 181 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 65 of 2021

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Co-operative Soc. Limited

Claimant

and

Charles Kagu Gakahu

Respondent

Ruling

1. The Application for determination is dated 26/4/21 which is brought under Sec 74 Co-operative Societies Act, Rules 11, 12, 17 and 18 Co-operative Tribunal (Practice & Procedure) Rules 2009 and all other enabling provisions of the Law.The Application seeks for orders;-a.That pending the hearing and determination of this Application, an order of stay of execution of the Judgment and decree of this Honourable Tribunal dated 13th April, 2021 be and is hereby issued;b.That, the judgment and decree of this Honourable Tribunal dated 13th April, 2021as against the Respondent, Charles Kagu Gakahu, be and is hereby set aside as ex debito justitae;c.That, summons be and are hereby issued to the process server to personally appear before this Honourable Tribunal for cross-examination on the date(s) of inter-parties hearing of this Application;d.That, the Respondent be and is hereby allowed to file a Statement of Defence to the Statement of Claim dated 28th January, 2021 within 14 days of this order;e.That, costs of this application be borne by the Claimant.

2. The same is premised on the grounds on the face of the Application to wit the Applicant states he was not served with the Statement of Claim and Summons to Enter Appearance.That the Judgment and decree of the Tribunal dated 13/4/21 against the Respondent is irregular and Respondent only came to know of it when served with a decree and Certificate of costs at his home on 14/4/21. That the Statement of Claim and Summons to Enter Appearance were served with the Decree at the Respondent home after judgment was already entered and decree issued.Respondent denies owing any monies to the Claimant and the Respondent has an arguable Defence which he ought to be given a chance to be heard.The Affidavit of Service filed constitutes falsehoods and this process serve is guilty of perjury. He is calling the said process server to be cross-examined on how he effected service of the pleadings.That the judgment ought to be set aside ex debito justitae and the same is irregular.

3. The Respondent filed a Replying Affidavit dated 1/6/21 on 7/7/21 to which they stated the Respondent/Applicants were properly served with the pleadings as per the annexed Affidavit of Service marked SMN-1 dated 18/2/21. That at the time of filing the request for judgment the Respondent had not filed any response despite service. The judgment in place is properly on record cannot be turned irregular.The Respondent is opposed to any orders setting aside the judgment in place as Respondent has not made any attempt to defend himself and only put effort when served with a decree from the Tribunal.That the Claimant/Respondent is seeking a liquidated claim and if the Tribunal is inclined to grant orders sought the decretal sum should be deposited in a joint interest earning account to serve as security.

4. Parties were directed to file written submissions to dispose of the Application and Claimant/Respondent filed their Submissions dated 20/8/21 on 26/8/21. The Respondent/Applicant filed their written submissions dated 19/7/21 on 23/7/21. The issues for determination from the Application and Affidavits are thus;-I.Whether the court should set aside the interlocutory judgment delivered on 9/4/21?II.Whether the Respondent have a good defence which ought to be considered?III.Costs.

ISSUE ONE 5. Whether the Court should set aside the interlocutory judgment?Order 10 Civil Procedure Rule rules 2010 is clear on sitting aside interlocutory judgment.Before an interlocutory judgment is entered the Tribunal ought to be satisfied the Respondent were duly served and Affidavit of Service filed in court.In the instant case the Affidavit of Service of Robert Nzyoka sworn on 12/3/21 was considered and it is on that basis the judgment was entered.The Respondent now state they were never served and would like to cross-examine the process server. The Claimant/Respondent on the other hand state the Respondent only woke from slumber when served with a decree.

6. AnalysisThe question we grapple with is how the Respondent was served with decree and took action and denies service of Statement of Claim and Summons to Enter Appearance.The Tribunal is guided by provision of (Article 159(2) (d) Constitution of Kenya) and Sec 1A and 1B of Civil Procedure Act in administering justice. The focus being on substantive justice rather than procedures technicalities and the just, efficient and expeditious disposal of cases.(Order 10 Rule 4 Civil Procedure Rule 2010) empowers courts to enter interlocutory judgment in cases where the plaint is drawn with a claim for pecuniary damages only on for detention of goods with or without a claim for pecuniary damages.Order 10 Rule 10 Civil Procedure Rule, 2010, provides for cases where a Defendant has failed to file a Defence.Order 10 Rule 11 empowers the court to set aside or vary a judgment that has been entered under Rule 10.

7. We do note the Tribunal has discretionary power to set aside ex-parte judgment with the main aim to see justice being done.Case ofMohammed & Another –vs- Shora (990) KLR 403 the court set out the tenents a court should consider to setting aside an interlocutory judgment;I.Whether there is a regular judgment?II.Whether there is a defence on merit?III.Whether there is a reasonable explanation for the delay?IV.Whether there would be any prejudice.The case of Shah –vs- Mbogo (1967) EA 166 it was held.“This discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice on hardship resulting from accident, inadvertence or excusable mistake or error .”

8. The Respondent are adamant they were not served and even state they refute the amounts being claimed for the interest of justice we shall set aside the judgment and decree despite having reservation on the same to give an opportunity to the Respondent to ventilate his case.We invoke Article 159 of the Constitution to render substance justice.

9. Upshot of the close;I.The Judgment and decree of this Honorable Tribunal dated 13th April, 2021 as against the Respondent , Charles Kagu Gakahu, be and is hereby set aside ex debito justitae;II.The Respondent be and is hereby allowed to file a Statement of Defence to the Statement of Claim dated 28th January, 2021 within 14 days of this Order, No order as to costs;III.Pre Trial Date 14/2/ 22. No order as to costs.

RULING, PREPARED READ AND DELIVERED ON VIRTUALLY THIS 17TH DAY OF FEBRUARY, 2022 WITH WHOM P. GICHUKI AND B. AKUSALA AGREE.HON. MJENI MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 2.2022P. GICHUKI MEMBER SIGNED 17. 2.2022B. AKUSALA MEMBER SIGNED 17. 2.2022Delivered in the absence of parties.SignedHON. MJENI MWATSAMADEPUTY CHAIRPERSON17/2/22.