[2021] KECPT 573 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.532 OF 2020

DANIEL DICKSON KIPRONO..........CLAIMANT

VERSUS

TRANSCOM SACCO LIMITED....RESPONDENT

RULING

Vide the Application dated 26. 8.2020, the Respondent has moved this Tribunal seeking for the following Orders:

1. That this Application be certified as urgent and heard exparte in the first instance;

2. That pending the hearing and final determination of the Application the Honourable Tribunal be pleased to grant a temporary stay of execution of the exparte Judgment/ Orders made on 1st July, 2020, decree/execution dated 19th August 2020 and all other consequential Orders arising therefrom;

3. That the Respondent be granted leave to defend its case as per its statement of defence dated 25th January, 2019 and each party’s case be determined on merit;

4. That the Respondent be allowed to cross examine the Claimant to the claimant ( on his documents, payments made to him and on the alleged debt the subject or execution) and this Application; and

5. That the costs of this Application be provided for the Respondent.

The Application is supported by the grounds on its face and the Affidavits of Maina Nguya, the Respondent’s Manager sworn on 26. 8.2020.

The Claimant has opposed the Application vide the Replying Affidavit sworn by himself on 23. 10. 2020.

Vide the directions given on 31. 8.2020, the Application was canvassed by way of written submissions. The Respondent filed its submissions on 17. 11. 2020while the Claimant did so on 9. 11. 2020.

Respondent’s Contention

It is the Respondent’s contention that his advocate on record was never served with any hearing Notice or Application that resulted in the exparte judgment being made and a decree issued. That the Claimant uttered before the Tribunal forged documents and therefore the Order obtained is underserving.

Claimant’s Contention

On its part, the Claimant opposes the Application on the ground that whilst the Respondent filed a statement of Defence as stated, he filed an Application to strike it out dated 25. 9.2020. That the said Application was scheduled to come up for hearing on 26. 2.2020. That the Application was served upon the Respondent’s Advocate who declined to accept service stating that he had no instructions to act in the matter and directed him to serve the Respondent in person. That a return of service to that effect was filed. That when the matter came up for hearing of the Application on 26. 2.2020, there was no representation on the part of the Respondent. The Tribunal then proceeded to allow the said Application by striking off the Respondent’s Defence.

Determination

We note that the Claimant’s Application dated 19. 9.2019 was allowed as a result of non-attendance by the Respondent on 26. 2.2020. The Respondent, vide the instant Application contend that it was not served with a hearing Notice for the said date. The Claimant contends that the Respondent’s Advocate on record was served but declined service on account that he did not have instructions to act for Respondent. That the Advocate then directed the process server to effect service of the Notice upon the Respondent in person.

We have perused the Affidavit of service sworn by Andrew Kyalo Mwazia on 18. 2.2020. It is apparent that whilst it is averred that the firm of Juda Ndiso & Company Advocates declined to receive the Application and the hearing Notice on 19. 12. 2019, there is evidence that the Respondent was personally served with the said Application and Notice on even date at 11. 30a.m. We have perused the counterpart copy of the hearing Notice and note that the same bears the stamp of the Respondent. The Respondent cannot therefore be heard to say that it was not aware of proceedings of 26. 2.2020.

However, taking all factors into account, and noting the need to administer substantive justice, we deem it fit to set aside the Orders of 26. 2.2020 and re-instate the Claimant’s Application dated 19. 9.2019 and give directions on its disposal as follows:

a. The Respondent to file and serve a Response to the Application within 7 days herein;

b. The Claimant to file and serve a further Affidavit (if need be) alongside written submissions within 14 days of service;

c. The Respondent to file and serve written submissions within 14 days of service;

d. Mention to confirm compliance and fixing a Ruling date on 4. 3.2021.

e. Respondent to pay Claimant thrown away costs of Kshs.5000 before 4. 3.2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JANUARY, 2021

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

In the presence of Mr. Kariuki holding brief for Mr. Magale for Claimant

Respondent absent

Court clerk Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021