[2021] KECPT 500 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 257 OF 2020

FRANCIS MUTUNGA NZOMO ................................................................CLAIMANT

VERSUS

TELEPOST SACCO.................................................................................RESPONDENT

RULING

Vide the Application dated 10. 9.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That service of this application be dispensed within in the first instance and the said application be certified urgent and heard ex-parte ipso facto;

2. That this Honorable Tribunal to strike out the defence filed herein on 3rd September 2020 with costs;

3. That this Honorable Tribunal be pleased to enter judgment in favour of the claimant against the Respondent in the sum of Kshs.78,500/= together with interest and cost;

4. That cost of this application be borne by the Defendants/Respondents.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on even date and a further affidavit, again sworn by the claimant on 2. 11. 2020.

The Respondent has opposed the Application vide the following Affidavits:

a. Replying Affidavit sworn by, Samuel Maumbe on 30. 10. 2020.

b. Replying Affidavit sworn by the said Samuel Maumbe on 11. 11. 2020.

Vide the directions given on 14. 9.2020, the Application was canvassed by way of written submissions. The Claimant filed submissions as follows:

a. Initial set of submissions on 15. 10. 2020;

b. Further written submissions on9. 11. 2020.

The Respondent filed its submissions on 26. 1.2021.

Claimant’s Case

Vide the instant Application, the Claimant wants the Respondent’s statement of Defence filed on 3. 9.2020 be struck of for being a mere denial.

Respondent’s Case

The gist of the Respondent’s opposition to the Application is that the Claimant was paid the sum due to him on 29. 11. 2005 vide cheque No. 004688. That he therefore has no claim against the Respondent.

Claimant’s further Affidavit

Vide this Affidavit, the Claimant has refuted the averments made by the Respondent vide its Replying Affidavit sworn on 30. 10. 20.

Respondent’s further Replying Affidavit sworn on 11. 11. 2020

Vide this Affidavit, the Respondent reiterates the averments made vide its Replying Affidavit.

Issues for determination

The Claimant’s Application has presented the following issues for determination :

a. Whether the Claimant has laid a proper basis to warrant the striking out of the Defence;

b. Who should meet the costs of the Application?

Striking out of Defence

Striking out of a pleadings a draconian remedy which should be exercised with abundant caution. In the case of Blue Shield Insurance Company Limited – vs- Joseph Mboya Ogutu [2009]eKLR, the court had this to say about striking out of pleadings:

“ The principles guiding the court when considering such an Application which seeks striking out of a pleading is now well settled. Madan J. A(as he then was) in his Judgment in the case of D.T. Dobie and Company (Kenya) Limited - vs- Muchina [1982] KLR 1 [held thus] “ The power to strike out should be exercised after the court has considered all facts but it must not embark on the merits of the case....The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all circumstances relating to the offe.....pleadings”

In the case of KCB –vs- Suntra Investment Bank Limited [2015] eKLR, the court gave the policy considerations behind striking out of pleadings in the following terms:

“....that the policy considerations of the above approach are that, 1) on one hand, a plaintiff should not be kept away from his judgment by unscrupulous Defendant who has filed a Defence which is a sham for the purposes only of temporizing on the case as long as possible, and 2) on the other hand, a defendant who has Bonafide issues worth of trial should not be denied the opportunity to be heard on his defence on merit to enable the court determine the real issues in controversy completely that is serving substantive justice on consideration of all facts of the case.”

We have extensively quoted the foregoing decisions so as to lay bare the law and guiding principles as far as striking out of pleadings is concerned. What we discern is that the remedy is available so as to shield the plaintiff from a Defendant who has filed unscrupulous Defence on the other hand, it’s meant to shield the Defendant who has a Bonafide issue worth trying from being driven out of the set of justice.

Coming to the present application, the question that we ask ourselves is whether the Claimant has established that the Defence on record is a sham. It is the Claimant’s case that the same is a sham us the debt has not been disputed.

On the other hand, the Respondent contend that the Claimant has not valid claim against it as the Claimant was paid the sums due way back in the year, 2005.

From these contrasting statements, it is apparent that the Tribunal will during trial, seek to establish whether or not the Claimant was truly paid the sums claimed. By raising the issue of refund of deposits in its defence, the Respondent is not being unscrupulous or mischievous. It is raising a valid point worthy of being admitted to trial.

Conclusion

With the foregoing observation in mind, we do not find merit in the Claimant’s Application dated 10. 9.2020 and hereby dismiss it with costs in the cause.

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

Maumbe for the Respondent

Mention on 24. 5.2021 for directions

Hon. B. Kimemia Chairperson Signed 25. 3.2021