[2021] KECPT 18 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 279 OF 2020

CONCORDE SAVINGS AND CREDIT

COOPERATIVE SOCIETY LIMITED...............................................................CLAIMANT

VERSUS

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

RULING

1. The Application for determination is dated 11. 6.2021 and it is brought under Section 3A, 8(b) and 100 of Civil Procedure Act Cap 21, Order 1A, 1B, 40 & 45 of the Civil Procedure Rule and all other enabling provisions of the law.

The Order sought are:

1. That the Application herein be certified as urgent and heard ex-parte on the first instance.

2. That the Honorable court be pleased to grant stay and issue temporary order of injunction restraining the Plaintiff/Applicant, his servants and/or agents from carrying away the Plaintiff goods listed in the proclamation notice dated 9. 6.2021 that is, motor vehicle registration No. KAK 134V, seven seater sofa set, dining table with six seats, one floor carpet, T.V set, one gas cylinder, one coffee table, one home theatre system pending inter-parties hearing of the Application

3. That the costs of this Application be provided for.

The same is premised on the grounds on the face of the Application and affidavit in support of George Huma sworn on 11. 6.2021 to wit he states he is Claimant in the present suit and filed an Application for review of court orders. That he has not been heard on merit and his Advocate inadvertent did not attach a draft defence. That he has a good defence and he has an autistic child who will get affected if the surrounding is changed.

2. There is another Application by the Applicant/ Respondent Notice of Motion dated 9. 6.2021 brought under Section 3A, 80 (b) and 100 Civil Procedure Act Cap 21, Order 1A, 1B, and 45 Civil Procedure Rule 2010 seeking for orders

i.Spent

ii.That there was a mix-up in the sense that somehow the court was not furnished with the Defendant’s draft defence.

iii.That the mistake was inadvertent for it is noteworthy that the Respondents do acknowledge to have received our draft defence but the same was somehow absent in the documents filed in court.

iv.That once the Defendant’s counsel noted the mistake, he immediately furnished the court with a draft defence as requested in an attempt to rectify the said mistake.

v.That the Applicant is keen on prosecuting his case and feels aggrieved by the decision to dismiss his Application dated 18. 12. 2020 on the basis of technicalities.

The same is supported by the Affidavit of George Huma sworn on 9. 6.2021 to wit he stated the decree holder has proclaimed his goods as annexed GH-1. That the adverse Ruling was made when the court did not have full facts pertaining the matter.

That they request for the Ruling of 27. 5.2021 to be stayed and set aside that the Application earlier filed had a draft defence which was acknowledged by the Advocates for the Claimant filed on 5. 3.2021. that they are at loss how the documents draft defence failed to be submitted.

3. The Plaintiff/Respondent filed Grounds of Opposition dated 29. 6.2021 filed on even date to which they state:

(i)The Application is res judicata the Ruling of this Honourable Tribunal ( Hon. B. Kimemia – chairperson) dated 27th May 2021 in CTC. NO. 279 OF 2020.

(ii)If the Application is allowed, it will cause injustice to the Plaintiff/Respondent.

(iii)The Application is incompetent, misconceived, unfounded, without merit, bad in law and an abuse of the court process and ought to be dismissed with costs.

The Applicant filed a response to the Grounds of Opposition dated 8. 7.2021 together with Supplementary Affidavit of George Huma sworn on 8. 7.2021 and state there was a mix up as to why a Draft Defence was not filed earlier in Affidavit dated 3. 3.2021.

The Claimant/Respondent are not being fair to the Respondent stating there was no Draft Defence yet in Paragraph II of Replying Affidavit dated 3. 8.2021 they challenged the contents of the Draft Defence.

That justice is n9ot dispensed with by determining cases hurriedly but for both parties to be able to ventilate on the contentious issues.

4. The Respondent filed their written submissions dated 15. 7.2021 and Claimant had not filed their submissions as of the date of this Ruling.

We shall not go into the merits of an irregular and or regular judgment as the same was handled in the earlier Application whose Ruling was delivered on 27. 5.2021.

The issue that arises was there a Draft Defence in the initial Application?

In the documents/pleadings filed in court the same was not on record.

However we cannot turn a blind eye to the fact that the Claimant/Respondent did in their Replying Affidavit the Application dated 18. 12. 2020 allude to a “ draft defence” and in paragraph II did in their Replying Affidavit of Rosemary Aseka sworn on 3. 3.2021 did state:

“ That in response to paragraph 9 of the Supporting Affidavit, I reiterate the contents of paragraphs 5,6,7,8,9 and 10 herein and aver that assuming setting aside judgment was an option, the same should not be done as there is the draft defence lacks merit as it consists of mere denials.”

This clearly indicates there was a draft defence attached to the Application which unfortunately the Tribunal was not privy to.

We have perused the said Draft Defence and thus find it does not contain mere denials and will for the interest of justice allow the Application dated 9. 6.2021 and review our ruling delivered on 27. 5.2021.

1. To this end, allow the application dated 9. 6.2021 and set aside the orders of ruling dated 27. 5.2021.

2. The application dated 11. 6.2021 stays the proclamation notice dated 9. 6.2021.

3. The Respondent leave to file and serve defence, witness statements and documents 21 days from date of this ruling without fail.

4. Mention for Pre-trial directions.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 4. 11. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021

Mr. Gitonga Kamiti Member Signed 4. 11. 2021

Mr. B. Akusala Member Signed 4. 11. 2021

Mr. P. Gichuki Member Signed 4. 11. 2021

Tribunal Clerk R. Leweri

No appearance by both parties.

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021