[2024] KECPT 1706 (KLR)

Embassava Co-operative Savings and Credit Sacco v Kebabe (Tribunal Case 488 of 2019) [2024] KECPT 1706 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1706 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 488 of 2019

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

October 31, 2024

Between

Embassava Co-operative Savings and Credit Sacco

Claimant

and

Jared Ogendi Kebabe

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 23rd August 2023 supported by an Affidavit sworn by one JARED OGENDI KEBABE, the Respondent and brought under Order 22 Rule 22, Order 10 Rule 11, Order 51 of the Civil Procedure Act and All enabling Provisions of the Law. The application seeks the following orders:1. Spent

2. Spent

3. That the interlocutory judgment entered by this Honourable Tribunal on 13th November, 2019 be set aside together with any Consequential Orders thereto and this matter do proceed to trial on merit.

4. That the Respondent’s Statement of Defence and list of documents dated 23rd August, 2023 be admitted as duly filed and served upon payment of the requisite court fees and do form part of this Honorable Tribunal’s record and

5. That costs of this Application be provided.

2. The Application is premised on the grounds on its face which are inter alia that: That the applicants were not served with any pleadings and they only became aware after the NTSC was served on them. That the Applicant’s movable goods risk being proclaimed and attached. That the Applicants have a good Defence that raises triable issues and that the Respondent will not suffer any prejudice if orders are granted.

3. The Claimant/Respondent filed a Replying affidavit. In their response, the Claimant/Respondent aver that they did serve the Applicant with the summons to enter appearance, and that they have filed a return of service dated 4th October 2019. They also contend that Applicant subsequently negotiated a payment plan and went ahead to write a commitment letter dated 31st October 2019 to the Sacco.

4. The Application was canvassed via written submissions and both parties filed their submissions.

5. In their submissions, the Applicants urges the court to allow the Application as prayed. The Applicant submits that they were never served and that the letters allegedly written by the Applicant are all fabrications. The Applicant further aver that they have a Defence that raises triable issues and that they should be given an opportunity to be heard on the same.

6. The Respondents, on the hand urges this court to dismiss the application. The Respondents submit that the Applicant was duly served, and that the judgement that was entered was regular. They also submit that the Applicant’s draft Defence raises no triable issues.

Issues For Determination 7. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the interlocutory judgement entered by this Tribunal on 13th November 2019.

Analysis 8. The issue in this case is that the Applicant claims that he was not served with the service to enter appearance, while there is an Affidavit of Service on record. The affidavit of service filed by a Court Process Server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo – Vs – Bodi Bach [1987] eKLR, where the Court of Appeal held as follows:-“There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”.

9. It is now upon the person alleging that service was not done to show that indeed such affidavit of service was defective. In the instant case, the applicant claims that it was never served at all.

10. In their Response, the Respondent avers that it indeed served the Applicant. On perusing the file, there is indeed a return of service that has been duly filed and is dated 4th October 2019. Paragraph 3 of the affidavit indicate that the Respondent declined to sign the summons.

11. In Toshike Construction Company Limited v Harambee Co-operative Savings & another [2019] eKLR the court stated as follows;-(a)Firstly, there are no limits or restrictions on the judge’s discretion except that if he does vary the judgment he does so on such terms as may be just ... 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 it by the rules.(b)Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from 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”.

12. In Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6 others [2011] eKLR, the Court of Appeal while discussing the input of article 159 of the Constitution in dispute resolution held:-“…………..Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party ………...”

13. The question that this court asks itself is whether the Applicant’s Application is merited. From the above analysis, we note that the court has a direction on whether to allow the Application or not based on the circumstances that led to the interlocutory judgment. The Applicant claims that he was not served while the Respondent avers that he did serve the Applicant. It is the contention of the Respondent that although service was done, the Applicant did not acknowledge receipt of the summons by signing on them. It is, therefore, the Applicant's word as against the Respondent's word.

14. The other question that this court has to ask itself is whether the Applicant’s Defence raises any triable issue. A triable issue is an issue that should be subjected to further interrogation by the court. The Applicant, in his Defence, avers that he was never given a loan by the Respondent, and that if indeed he was, then he had already finished paying the loan. This is matter that will require parties to adduce evidence to prove its truth or otherwise we find this to be a triable issue.

15. This Tribunal is inclined to give a benefit of doubt to the Applicant, and orders as follows;a.The interlocutory judgement entered on 13th November 2019 is hereby set aside.b.The Applicant is to pay the Respondent thrown away costs of Kshs. 15,000/-c.The Applicant Statement of Defence dated 23rd August 2024 be admitted as duly filed and served upon the payment of requisite court feesd.Parties to file and serve witness statement and documents within 21 days herein.e.Pre-trial directions on 6. 2.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 10. 2024HON. PAUL AOL MEMBER SIGNED 31. 10. 2024Tribunal Clerk JemimahAuga advocate for Claimant/ApplicantNo appearance for Respondent/ApplicantHON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024