[2021] KECPT 516 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.279 OF 2020

CONCORDE SAVINGS & CREDIT SOC LTD .........................CLAIMANT

VERSUS

GEORGE HUMA…………………………................................RESPONDENT

RULING

1. The matter for determination is a Notice of Motion dated 18/12/20 filed on 22/12/20 seeking the following orders;

(i) That the Honorable Tribunal certify the matter urgent and service of the application be dispensed with in the first instance

(ii) That the Honorable court be pleased to set aside the Judgment entered against the Defendant on 27th October,2020.

(iii) That the Honorable court be pleased to stay the execution of the decree herein passed on the 16th November 2020 pending the determination of this Application

(iv) That the defendant be allowed to file his defense out of the prescribed time.

(v) That costs of this application be provided for.

2. Grounded on the grounds on face of the Application supported by the Affidavit of George Huma of deponed even date.

The Application is opposed vide Replying Affidavit of Rosemary Aseka, Chairperson of the Respondent deponed on 3rd March,2021 filed on 5/3/2021.

The Claimant filed a Supplementary Affidavit on 6/4/2021.

The Application was ordered to dispensed with by way of Written Submissions filed on 5/3/21 and 6/4/21respectively.

The Applicant/Respondent submitted hat there was a default judgment issued on 22/10/20 and stay of execution order issued on 22/12/20. They seek for the said judgment to be set aside as they were not aware of the instant suit. They were never served with the plaint or summons to enter appearance, and only received the Notice of Entry of Judgment on 17/11/20.

That the Respondent stands to suffer irreparable loss since they have a good Defence which raises triable issues: It would be prejudicial and unfair to be condemned unheard.

3. The Claimant stated they received summons to enter appearance and served the Respondents with the last known email address gcohuma@gmail.com on 15/9/20. That on the same date, the Advocates called the Respondents from the cell phone and advised of the instant suit. That they neither entered appearance nor filed a defence hence the Claimant filed a Request for Judgment dated 9/10/20.

That setting aside the Judgment is not an option since the draft defence lacks merit as it consists of mere denials and if the same is set aside, they should be ordered to pay throw away costs of Ksh.20,000.

4. Issues for Determination

i. Was there proper service

ii. Triable issues

iii. Costs

5. Issue One

Whether Service was effected on the Respondents

The Applicant submitted that no service was effected upon them and if it was, he had no reason to respond.

That the parties held prior discussions about the money in contention before the suit was filed.

The Respondent/Applicant urged the Tribunal to take judicial notice of the fact that when one receives an email, it may end up in “spam mail” and one may not get it.

The Applicant/Respondent further acknowledges that there were discussions before the suit was filed and when the parties deferred they agreed it be best be determined in court.

That further the Tribunal should take notice the COVID-19 pandemic restricted movement and even if one wanted to instruct a lawyer there were huddles.

5. The Claimant submitted that Civil Procedure (Amendment) Rules 2020 provides for service via electronic mail under Order 5 Rule 22b which reads;

(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 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.

6. The Claimant’s advocates received summons on 15/9/20 and served them to the Respondent’s last known email address and further phoned the Respondent on the mobile number 0728604434 and explained the pendency of the instant suit but they took no action hence the Claimant filed Request for Judgment 41 days after service of Summons. That Summons were therefore duly served upon the Respondent.

7. The upshot of the above we find the Applicant/Respondent was duly served with the Summons to enter Appearance.

The Applicant does not deny service of summons. Secondly, there is no reasonable explanation why they did not file their Memorandum of Appearance and Statement of Defence in good time as per the celebrated case of PRIME BANK LTD VS PAUL OTIENO NYAMODI [2014]eKLR.

“Ordinarily, the Court will not set aside or vary interlocutory judgment because it would essentially be setting back the Plaintiff’s progress in prosecuting in prosecuting its case causing it to suffer prejudice. The Court must therefore be satisfied that the Defendant offered a very plausible explanation as to why he failed to file his memorandum of appearance and Defence with the prescribed period under CPR 2010 before such judgment can be set aside and/or varied.”

and SHAH VS MBOGO [1967]EA 116

“The discretion is intended to be exercised to avoid injustice or hardship resulting from an accident, inadvertence or excusable mistake or error but is not designed to assist the person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.”

7. Issue Two

TRIABLE ISSUES

The Applicant submitted that they have a right to be heard in context of the Claim since they have a merited Defence. That the Claimant should not be allowed to unjustifiably enrich himself with the aid of the Court hence should be allowed to defend the Claim.

The Claimant submitted that the draft Defence attached to the application consist mere denials. We have noted in the first instance that the Respondent did not file a Draft Defence.

In their email dated 21/12/20 for assessment of the Application, they stated that they had paid ksh.400 for the Application and the assessment of the documents on the said day was for ;-

a. Certificate of Urgency

b. Notice of Motion

c. Supporting Affidavit

On 12/4/21 the Tribunal wrote to the Advocate for the Applicant/Respondent requesting for the Draft Defence and other documents mentioned in the Certificate of Urgency but to date they have not been responsive.

We therefore deem it that there was no draft defence filed as per Supporting Affidavit filed on 22/12/20 Paragraph 9,10 and 11.

We are guided by the authority of KINGSWAY TYRES & AUTOMART LTD VS RAFIKI ENTERPRISES LTD.CIVIL APPEAL 220 OF 1995,where it held”

“ Notwithstanding the regularity of an exparte judgment, a court may set aside the same if a Defendant shows he has reasonable defence on its merits. A court may set aside an exparte judgment if a Respondent shows he has a reasonable defence on merit.

The Respondent did not annex to its application in the lower court a draft defence. It was desirable we think for the Respondent to annex its application a draft Defence to include all that and all other Defence it may have had to the Applicant’s Claim.

Be that as it may, the Defence above were not such as would have properly influenced the Court below to exercise its discretion in favor of setting aside..”

In the instant case despite the reminder from the Tribunal the Respondent opted not to respond to our email and file the draft defence as requested.

In the circumstances thereof it is trite law Equity does not aid the indolent. The Respondent slept on their rights to persuade the Tribunal to set aside the judgment and determination on whether there were triable issues.

The Tribunal therefore in its discretion have considered that there being no draft Defence filed then there is no Defence that causes triable issues.

8. Issue of Costs

COSTS

Costs follow the event; as disclosed above the Applicant has not demonstrated any reasonable explanation, lack of service and triable issues.

In the matter therefore, the Application lacks merit and is accordingly dismissed this costs.

Ruling signed, dated and delivered virtually this 27thday of May, 2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Nekesa holding brief for Mukhaha Advocate for Claimant: Present

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 27. 5.2021