[2021] KECPT 553 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.233 OF 2019

ELIZABETH WAVINYA MUTIE

(suing as the administrator of the estate of the late

PAUL MUTIE MAKAU..............................................................................CLAIMANT

VERSUS

KATHEKAKAI FARMERS’ CO-OPERATIVE

SOCIETY LIMITED .......................................................................... RESPONDENT

RULING

Vide the Application dated 3. 9.2019, the Respondent has moved this Tribunal seeking for Orders inter alia:

1. Spent;

2. Spent ;

3. That this Honorable Tribunal be pleased to set aside the proceedings and judgment entered on 9. 7.2019;

4. That the Honourable Tribunal be pleased to grant leave to the Respondent to file a statement of Defence within 14 days;

5. Costs in the cause.

The Application is supported by the grounds on its face and the Affidavit sworn by Amos James Kimuli on 3. 9.2019.

The Claimant has opposed the Application vide the Replying Affidavit sworn by his counsel on record, Benson Mbuthia Njiru on 14. 10. 2019. .

Vide the directions given on 24. 8.2020, the Application was canvassed by way of written submissions. The Respondent filed its written submissions on 4. 12. 2020 while the Claimant did so on 3. 12. 2020.

Respondent’s Case

It is the Respondent’s case that it did not enter Appearance nor filed a Defence purely as a result of a mistake on the part of one of its officials. That from the copy of summons on record it appears that the same was duly served upon it as it bears its stamp and the signature of its Secretary Dominic.

That upon perusal of the claim, the Respondent notes that the dispute is manifested to be that of shares (40) but in reality, the same revolve around the ownership of 40 acres of land comprising Katheka- Kail Farm B. That as such, the Claimant has not made a candid disclosure of facts that:

a. She has not disclosed that the late Paul Mutie was married to and survived by three (3) wives namely, Mumbua Mutie(Deceased), Nthenya Mutie (Deceased) and Elizabeth Wavinya Mutie.

b. That the late Paul Mutie Makau, upon receipt of his portion of land in Farm A measuring 13 ½ acres, divided it amongst the three (3) wives and settled them with their respective children.

c. That it is apparent from the Claimant’s certificate of confirmation of grant that she declared herself as the sole heir to properties in the name of the late Maku Mutie to own wholly 35 acres.

That in the circumstances, and in lieu of the fact that the subject matter revolve around ownership of land, this Tribunal does not have jurisdiction to handle the dispute as the same remains the preserve of the ELC.

Claimant’s Case

The Claimant has opposed the Application merely on the ground that the same offends the provision of Order 9 Rule 9 of the Civil Procedure Rules.

Issues for determination

1. Whether the instant Application offends the provisions of Order 9 Rule 9 of the Civil Procedure Rules.

2. Whether the Respondent has established a proper basis to warrant the setting aside of the default judgment entered on 9. 7.2019.

3. Who should meet the costs of the Application?

Order 9 Rule 9 of the Civil Procedure Rules

Order 9 Rule 9 of the Civil Procedure Rules given the procedure for representation of parties once judgment has been passed. It requires that once judgment has been passed, a party can act in person or an advocate in court or record only upon consent being recorded or vide a court order upon being formally moved. A question abound as to whether the said Rule is applicable in the circumstances of this case, our answer is in the negative. Order 9 Rule 9 contemplates a scenario where a suit has been determined on merits. The claim herein has not been determined on merits. What is on record is an interlocutory judgment. As such, the Respondent does not have to seek leave to come on record.

Setting aside of default Judgment

We have jurisdiction to set aside a default judgment by dint of Order 10 Rule 11 of the Civil Procedure Rules. The Rule provides thus:

“ Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential Decree or Order upon such terms as are just.”

In the case of Patel – vs- East Africa Cargo Service Limited (1974)EA 75, the Court underscored this provision in the following terms:

“ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules.”

Before we can exercise our jurisdiction under Order 10 Rule 11 above, we firstly have to ascertain whether the default judgment is a regular or irregular one. If the Judgment is an irregular one, then we will set it aside ex debito justiciae.

This was the holding in the case of K- Rep Bank Limited -vs- Segment Distributors Limited [2017] eKLR.

The court in the case of Fidelity Commercial Bank Limited – vs- Owen Amos Ndungu & Another, HCC.NO. 241/1998 gave a distinction between a regular and irregular judgment as follows:

“ A distinction is drawn between regular and irregular judgments. Where summons to enter Appearance has been served and there is default in entry of Appearance the ex parte judgment entered in default is regular. But where the exparte judgment sought to be set aside is obtained either because there was no proper service or any service at all, of the summons to enter Appearance, such judgment is irregular and the affected Defendant is entitled to have it set aside as of right”

Where the default judgment is regular, then the Tribunal has to consider if the draft Defence filed with the Application raises triable issues. This was the holding in the case of James Kanyiita Nderitu & Another - vs- Marios Philotas Ghikes & Another [2016]eKLR. In the pertinent part, the court held thus:

“ In a regular default judgment, the Defendant will have been duly served with summons to enter appearance, but for one reason or another, he failed to enter appearance or to file a Defence, resulting in default judgment. Such a Defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules to move to court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as to the reason as for the failure of the Defendant to file his memorandum of Appearance, or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended Defence raises triable issues, the respective prejudice each party is likely to suffer whether on the whole, it is in the interests of justice to set aside the default judgment.”

Reasons for failure to enter Appearance or file a Defence

The Respondent has stated that whilst it appears that summons to enter Appearance was duly served upon it, the same was not formally brought to the attention of the Management Committee so as to trigger appropriate action. That as such, there was inadvertence on entry of Appearance or filing of Defence. That the said inadvertence should not occasion hardship on the part of its membership. The Claimant has not controverted this explanation.

We have considered the reasons advanced by the Respondent as regards its failure to enter appearance and defend itself. We find the same honest and satisfactory.

Defence raising triable issues

We have perused the draft Defence annexed to the Application. We note that the Respondent has challenged the jurisdiction of the Tribunal to entertain the claim. Jurisdiction is everything and it goes to the root of the claim. We thus find that the same is an issue worth trying at hearing of the main suit. To this end we find that the draft defence raises triable issues.

Thrown away costs

The Claimant has prayed for thrown away costs of Kshs.20,000/= should we allow the Application. We agree with her that she is entitled to costs. The Respondent has unnecessarily caused delay in determination of the issues in dispute. We thus find that she is entitled to thrown away costs. We will determine quantum in our final orders below.

Conclusion

The upshot of the foregoing is that we find merit in the Respondent’s Application dated 3. 9.2019 and hereby allow it as follows:-

a. That the interlocutory judgment dated 9. 7.2019 is hereby set aside;

b. That the Respondent is granted leave of 14 days to file and serve a Defence, witness statement and list and bundle of documents;

c. The Claimant to file and serve a Reply to the Response as well as supplementary witness statements and documents (if need be);

d. Mention to confirm compliance and fixing a hearing date on 24. 5.2021.

e. In the meantime, the Respondent is directed to pay the Claimant thrown away cost of Kshs.10,000/= to be paid on or before the hearing date.

Ruling signed, dated and delivered virtually this 25th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 25. 3.2021

Hon. Jane Mwatsama Deputy Chairperson Signed 25. 3.2021

Mr. P. Gichuki Member Signed 25. 3.2021

Nyandieka for Applicant/Respondent

Mbuthia for Claimant/Respondent

Hon. B. Kimemia Chairperson Signed 25. 3.2021