[2023] KECPT 1078 (KLR)

Cofi Sacco Society Limited v Abdullahi (Tribunal Case E404 (641) of 2021) [2023] KECPT 1078 (KLR) (Civ) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1078 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E404 (641) of 2021

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

November 30, 2023

Between

Cofi Sacco Society Limited

Claimant

and

Ahmed Hassan Abdullahi

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 16th March 2023 and filed on the same date and supported by an affidavit sworn by the Respondent Ahmed Hassan Abdullahi. The same is brought under (Article 159(b) of the Constitutionof Kenya, 2010, Sections 1A, 1B, 3A and 63 (e) of the Civil Procedure Act, Cap 21 of the Laws of Kenya and all the other enabling provisions of the Law). The Application seeks the following orders;a.That this Application be certified urgent and be heardex-partein the first instance.b.That pending the hearing and determination of the instant Notice of Motion, this Honourable Cooperative Tribunal be pleased to grant an Interim Order of Stay of execution of the judgment and Decree herein together with all Consequential Orders.c.That pending the hearing and determination of the Instant Notice of Motion, this Honorable Cooperative Tribunal be pleased to grant an order of stay of execution of the judgment and decree herein together with all Consequential Orders.d.That this Honourable Cooperative Tribunal be pleased to vary, rescind and/or set aside the interlocutory judgment entered against the Respondent/Applicant together with all Consequential Orders thereto.e.That consequential to prayer (4) herein above being granted this Honourable Cooperative Tribunal be pleased to grant leave to the Respondent/Applicant to defend this suit and file the annexed Draft Statement of Defence out of time and the same be deemed as duly filed and served.f.That costs of this Application be provided for.

2. The Application is premised on the grounds on its face which areinter alia that: an interlocutory judgment was delivered on the 6th December 2022 against the Respondent/Applicant. However, the Applicant contends that he is illiterate yet the summons to enter appearance were sent via WhatsApp which he claims could not read. The Respondent further contend that he has a strong case and a reasonable Defence and that if the prayers to set aside the interlocutory judgement are not granted, the Respondent will permanently lose an opportunity to defend himself.

3. The background of the Application is that the Claimant herein brought a claim against the Respondent for the recovery of a sum of Kshs. 2,315,000/- which had allegedly been advanced to the Respondent who is claimed to be a member of the Claimant. The sum is composed of a loan facility of Ksh.2,000,000/= and a profit of Kshs. 600,000/-. The Respondent did enter appearance in the matter, and neither did he file a Defence. The Claimant filed a return of service for summons to enter appearance dated 14th July 2022, as well as copies of WhatsApp messages sent to the Applicant/Respondent. The Claimant filed a request of judgement and judgement in default was entered on 7th December 2022. The Respondent filed the Application herein.

4. The Claimant/Respondent filed a Replying Affidavit, and both parties filed submissions. In their response, the Claimant/Respondent asserts that the Applicant was properly served, that he admitted getting served via WhatsApp, and that he did not show that he cannot read.

5. In their submissions, the Applicants/Respondents agree that they did not enter appearance or file a Statement of Defence but give the reason that they were not able to read the message because they are illiterate. They rely on various cases and submit that it is indeed the courts discretion to set aside an ex parte judgement, and that discretion should be exercised in order to avoid injustice or hardship on the Applicant. They also submit that their Defence raises triable issues.

6. The Claimants on the other hand in their submissions, sought to answer the question on whether the Application before court is merited. On this question, they rely on various case laws, and contend that the Respondent does not dispute that he was indeed served, but his only plea is that he could not comprehend the message. The Claimants contend that service was duly done according to the law.

Analysis 7. The question before this Tribunal is whether the interlocutory judgment entered against the Applicant/Respondent should be set aside.

8. It is not in dispute that the Applicants/Respondents did not enter an appearance or file Statement of Defence. It is also not in dispute that the Claimant served the Respondent, and the Respondent admits getting the message from the Claimant. The issue in this case is that the Applicant claims that even if he received the summons via WhatsApp, he could not know what they were because he is illiterate. The question before this Tribunal therefore, is whether service was effective. There is no evidence on record to determine whether the Applicant is indeed illiterate. However, the Claimants/Respondents have not disputed this and therefore we give the benefit of doubt to the Applicant that he is indeed illiterate.

9. This Tribunal has considered the application, the responses and the submissions of the parties. This court look at the rules guiding service via electronic means. Order 5 Rule 22B of the Rules provide 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 effected 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 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.The Claimant claims that he effected service through WhatsApp and received blueticks showing that the Applicant herein had received the message. The Applicant does not dispute this and we find that the Claimants service was regular.The question that the Tribunal then asks itself is whether justice will be done if the default judgement is not set aside. We find that had the Applicant admitted to receiving the summons, understanding them and choosing not to respond to them, this court would be have a very simple task ahead of it. Not grant the prayers sought. However, this is an Applicant who received the summons but did not understand what they were and the implications of inaction because of his illiteracy. We find that injustice would be done if we dismiss his prayers without looking at his defence to see if it raises triable issues.In the case of Thayu Kamau Mukigi -v- Francis Kibaru Karanja (2013) eKLR, the court stated as follows:“……… when an ex-parte judgment was lawfully entered the court should look at the draft defence to see if it contained a valid or reasonable defence.”And indeed in Tree Shade Motors Limited v D T Dobie Company Limited NRB CA Civil Appeal No 38 of 1998 [1998] eKLR, the Court of Appeal stated that,“Even if the service was valid, judgment will be set aside if [the] Defence raised triable issues”.This Tribunal has perused the Draft Defence that is filed with the Application herein. In the Defence, the Respondent denies that he indebted to the Claimant to the amounts shown. He raises a Counter-Claim in which he asserts that even if he entered into a loan facility with the Claimants, he is a Muslim and the concept of interest does not apply to him. He claims that the Claimant represented to him that they were Sharia Compliant, and that they should be estopped from denying that they are. We find the issues raised by the Applicant in his Defence to be triable issues.

10. The upshot of the foregoing is that we allow the Applicant/Respondent’s Notice of Motion Application dated 16th March 2023 with the following orders;a.The Applicant/Respondent to pay thrown away costs of Kshs. 15,000/- to the Claimants within 30 days of this ruling.b.The Respondent to file his Statement of Defence within 14 days of this Ruling, and thereafter comply with Order 11 of Civil Procedure Rules.c.Each party to bear their own costs.d.Mention for Pre-trial direction on 18. 4.2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahNo appearance by parties.Ruling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 30. 11. 2023