https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/318

**REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NYERI** **TRIBUNAL CASE NO. E408 OF 2023** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **ENERGY REGULATED NON-WDT SACCO LTD………………..CLAIMANT** **VERSUA** **MANNASSEH KARIUKI KINYANJUI………………………….RESPONDENT** **AND** **CORNERSTONE AUCTIONNERS ……………RESPONDENT/AUCTIONEER** **RULING** 1. By a Notice of Motion dated 17th January 2026 filed before this tribunal, the Respondent herein, Mannasseh Kariuki Kinyanjui seek for the following orders: 2. Spent 3. Spent 4. Spent 5. That the tribunal to vacate and or review and or set aside the judgement delivered on 8th October 2025 and all consequential orders thereto. 6. That the cost of this application to be provided for. 7. The respondent’s application is brought pursuant to section 1,1A,1B & 3A of the civil procedure Act, Order 1 Rule 3 &5, order 9 & 10 Rule 11 & Order 22 Rule 22 of the civil procedure rules and all other enabling provisions of the law. It is supported by an Affidavit sworn by Mannasseh Kariuki Kinyanjui dated 17th January 2026. 8. The Respondent/Applicant state that he filed the Notice of Motion dated 17/1/2026 because the Claimants’ auctioneers proclaimed his household effects yet he was not served properly with pleadings, the Notice of the Entry of the Default Judgement, the Judgement itself and the Decree before execution. 9. That he became aware of the developments when he was served on 16/1/2026 through WhatsApp with a Notice of Proclamation dated 12/1/2026. Further, the Respondent state that he does not know James Mungai who allegedly signed the Proclamation Notice at his house. 10. In a Replying Affidavit sworn by Stanley Mwachi Ayumba-The Chief Executive Officer of the Claimant, the Claimants opposed the Respondents Notice of Motion and demonstrated how dishonesty the Respondent is by giving a chronology of events from 16th May 2023 when the suit was first filed to date. The Claimant witness state that the Respondent was advanced mobile loan in 2018/2019 and was advanced Ksh2,000,000/ normal loan in 2020. 11. Regarding service, the Claimant state that they scanned and served the Respondent with summons dated 12th June 2023 together with the statement of claim and the annexures dated 10th May 2023 on 23rd September 2025 through WhatsApp of his mobile No.0723784327 and through his email masekareez@gmail.com 12. Further, the Claimants state that when the Respondent failed to respond and failed to file a defence they applied for a Judgement to be entered in their favour against the Respondent, which was granted on 8th October 2025. 13. Finally, the Claimants state that the Notice of Preliminary objection dated 29th September 2025 that was filed by the Respondent was not heard because he failed to follow it up or lost interest to prosecute his own application. 14. After various mentions regarding the Respondent’s instant Application, on 31st January 2026, the tribunal granted a temporary stay on attachment of the Respondent’s effects pending mention of the matter on 12th May 2026. Similarly, directions were given on the disposal of the Application by way of Written Submissions to wit, the parties complied. 15. Upon analysing and considered the Respondents grounds listed on the face of the application which are supported in his Affidavit together with the Written Submissions and the authorities cited thereon. Similarly, having done the same to the Claimant’s Replying Affidavit and the Written Submissions before we make determination of the instant Notice of Motion, it would be pertinent to dispose of the Respondents pending Preliminary Objection. **Disposal** 1. In the Preliminary Objection dated 29th September 2025 the Respondent challenges the Claimants claim by stating that: (i) a section of the claim offends the limitation of Actions Act, (ii) that the cause of action is against the wrong Respondent and (iii) finally the tribunal must down its tools and or dismiss the suit with costs to the Respondent. 1. As to what constitutes a Preliminary Objection, the same was settled in the celebrated decision in the case of **Mukisa Biscuits Manufacturing company ltd V. West End distributors (1969) EA 696** which held that a preliminary objection consist of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point will dispose the matter. To concertize the Mukisa Biscuits holding the Court in the case of; [***Oraro vs Mbaja***](https://kenyalaw.org/akn/ke/judgment/kehc/2005/3182)**[2005] eKLR, 141**, held “*Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence.”* 1. The Respondent in the Preliminary Objection state, that some sections of the Claimants’ claim offends the limitations of Actions Act, without specifically stating which sections of the Act are offended by which parts of the claim. With this lack of clarity, it means that facts have to be ascertained by the tribunal. On the ground that the cause of action is against a wrong respondent, again this ground requires the ascertainment of facts from the Claimants loan application form and the member statement account. Reliance is placed in the case of **John Musakali vs. Speaker County of Bungoma & 4 others (2015) eKLR,** where the court held that: - **“…..….If, however, facts are disputed and remain to be ascertained, that would not be a suitable preliminary objection on a point of law.”** It is our finding that the Respondent’s Preliminary Objection does not raise pure points in law but based on facts that need to be ascertained in a hearing. Accordingly, we hereby dismiss it with no cost to either party. 1. Turning to prayer 4 in the Notice of Motion dated 17/1/2026 since the tribunal has dealt with the other prayers, the respondent has invited the tribunal to interfere the judgement entered on 8th October 2025 together with the consequential orders. Before we consider whether to set aside the judgement or not, it is important to discern whether the judgement entered was regular or irregular. To help us put this in to perspective we rely on the case of [***James Kanyiita Nderitu & another v Marios Philotas Ghikas & another***](https://kenyalaw.org/akn/ke/judgment/keca/2016/470)**[2016] KECA 470 (KLR)** where the court held: **“***From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the Civil Procedure Rules, to move the 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 the reason 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 interest of justice to set aside the default judgment, among other. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).* *In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”* 1. A return of Affidavit of Service sworn by Maureen Njeri is on record showing that the Respondent was served through his email and WhatsApp No.0723784327 with the summons dated 12/6/2023, the Claimants’’ statement of claim and the annexures dated 10/5/2023 on 23/9/2025. When the Respondent failed to enter appearance and failed to file a defence, the Tribunal entered Judgement in favour of the Claimant against the Respondent for refund of Ksh.2,816,617.85. 2. It is trite law that once a party has been served with Summons and Pleadings, he/she ought to enter appearance and file a defence. The Tribunal notes that the Summons dated 12/6/2023 and the Pleadings dated 10/5/2023 were served upon the Respondents twice, first they were served on 21st June 2023 and a Return of Service dated 27th June 2023 was filed by Judith Oyala. However, the suit remained unprosecuted for more than two (2) years without any valid reason by the Claimants until a second Service was effected on 23rd September 2025 approximately 27 months from the date of issue of the Original Summons. Undoubtedly, this 2nd service goes against the provisions of Order 5, rule 2 that provide as follows: 3. **“***Summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue and a concurrent summons shall be valid in the first instance for the period of validity of the original summons which is unexpired at the date of issue of the concurrent summons”.* **(*Emphasis ours*)** 4. Granted that the lifetime of service of Summons to enter Appearance upon the Respondent is twelve months from the date of issue of the Original Summon, the Tribunal is of the view that the Claimants 2nd service of the expired Summons upon the Respondents was invalid. Faced with similar circumstances, the Court of Appeal in the case of **Uday Kumar Chandulal Rajani & 3 others Vs Charles Thaithi C.A. No. 85 of 1996 (U.R)**, expressed itself as follows: **“Order V Rule 1 provides a comprehensive code for the duration and renewal of summons, and therefore the non-compliance with the procedural aspect caused by failure to review the summons under this rule is such a fundamental defect in the proceedings that the inherent powers of the Court under Section 3A of the Civil Procedure Act cannot cure. The first summons having expired and the Deputy Registrar having held that there was no proper service, he could not in the circumstance’s re-issue fresh summons after the expiry of the aforesaid 24 months period. Neither did the Enter Appearance by the defendants revive the summons which had expired. The original summons in an action is only valid for the purposes of service for 12 months from the date of its re-issue. The Court before 1996, could only order extend its validity from time to time for such a period not exceeding 24 months from the date of its issue if satisfied that it was just to do so. However, in this case, neither the plaintiff nor his advocate did exhaust the provisions of Order V rule 1 (5) by making any application for extension of the validity of the original summons; and consequently, the Court had no power to extend the validity of summons beyond 24 months, when in fact there was no valid summons in existence. It follows, therefore, that the alleged service upon the defendants was ineffective and invalid and so were the summons issued by the Deputy Registrar”. (Emphasis added)** 1. This Tribunal is persuaded by the above decision and find that, the Claimants’ failed to apply for Judgement when the first Affidavit of Service of Summons was filed on 27th June 2023, instead they waited for two (2) years and three (3) months to re-serve the same summons and apply for judgement. On this, the Tribunal acknowledge that the ex-parte Judgement entered on 17th October 2025 was irregular because it is based on expired and or invalid Summons. 1. To this end, the Tribunal invokes Order 10 Rule 11 of Civil procedure Rules 2010 which provide: **“***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”.* This above provision is buttressed in the case **of Shah vs. Mbogo [1967] EA 116** where the East African Court of Appeal established an important principle of judicial discretion regarding the setting aside of ex parte judgments or extensions of time. In the said case, the court held that: - “*The discretion of the court to set aside an ex parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”* 1. Being cognisant of the fact that the Respondent has disputed service of valid Summons to Enter Appearance, service of the Claimants’’ Pleadings, service of Entry of Judgement, the Tribunal gives him the benefit of doubt and in the interest of justice hereby set-aside the Ex-parte Judgement entered on 8th October 2025 together with all the consequential Orders. **Final Orders** It is our finding that the prayers sought in the Application dated 17th January 2025 is merited and allowed as hereunder: 1. Leave is hereby granted to the firm of Solomon Mugo & Co Advocates to come on record for the Applicant after Judgement. 2. The decree issued on 27th November 2025 and warrants of attachment dated 12th January 2026 is set aside pending the hearing and determination of the hearing. 3. Judgement delivered on 8th October 2025 and all consequential orders attendance therefrom is hereby set aside. 4. Costs will be in the cause. Directions: The Claimants to file and serve Statement of Claim, Witness Statements, List of Documents that they intend to rely on trial upon the Respondent within the next 14 days from the date herein. Mention for Pretrial Direction on 15.10.2026. Notice to issue. Ruling signed, dated and delivered *virtually* at **Nairobi** this **9th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed** **9.7.2026** **Hon. Beatrice Sawe Member Signed 9.7.2026** **Hon. Fridah Lotuiya Member Signed 9.7.2026** **Hon. Paul Aol Member Signed 9.7.2026** **Hon. Michael Chesikaw Member Signed 9.7.2026** **Tribunal Clerk Jemimah** Advocate for the Claimant – No appearance. Nduli advocate for the Respondent **Hon. J. Mwatsama Chairperson Signed 9.7.2026**