[2021] KECPT 33 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 027 OF 2021

FRANIS MITHAMO MAINA........................................CLAIMANT

-VERSUS-

EVANS MOSETI OKECHI........................................RESPONDENT

RULING

1. The Respondent had filed a Notice of Motion Application dated 29th March 2021, seeking orders to set aside the Judgment in Default of Appearance given by this Tribunal on 11th March 2021, and all orders consequential thereto. The facts are that the Respondent entered appearance, but failed to file a Defence. The Respondent pleads ignorance of the law on the period required to file a Defence.

2. The Application came for Hearing on 3rd May 2021, but the Respondent gave it a no-show, and this Tribunal proceeded to dismiss the Application due to the non-attendance. The Respondent has filed a new Application, adducing evidence that he was indisposed on the date of his Application’s hearing. He seeks the reinstatement of his Application dated 29th March 2021, and prays that this new Application and the former one be heard concurrently.

3. Once a party has been served, they ought to enter appearance and file a defence. Again, absent of this would invite the court to make the necessary assumption that the defaulting party is disinterested in the case, and it must proceed without their presence. Order 7 Rule 1 of the Civil Procedure Rules provides as follows:

“Where a defendant has been served with a summons to appearhe shall[emphasis is ours], unless some other or further order be made by the court, file his defence within fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service.”

4. The Respondent entered appearance on 22nd February 2021, but failed to file a defence, not just within 14 days; he failed completely. Ignorantia juris non excusat [loosely translated as “ignorance to the law is no excuse”], is the basis of this Tribunal’s refusal to admit the feeble excuse that the Respondent is proffering. By the time the Respondent was being served with the Notice of Entry of Judgment and himself filing an Application dated 29th March 2021, the grace period for filing a defence was long gone. The only option would have been to file an Application seeking for leave to file a Defence out of time. This was not done.

5. It is thus obvious and apparent that the Respondent’s Application is an afterthought, a calculated attempt to sabotage the course of justice, and a reckless attempt to buy some time. This Tribunal must refuse to be dragged into those kinds of diversions. Justice is a serious quest, and each party needs to play their role in ensuring that the said justice is served in a speedy and timeous manner.

6. A cursory look at the proposed Statement of Defence gives the impression that the Respondent has no arguable defence. To tamper with the Judgment of this Tribunal in order to entertain proceedings which are to be dependent on a Defence that has no head or tail would be wasting precious judicial time.

7. In the case of Sameer Africa Limited -vs- Aggarwal & Sons Limited [2013] eKLR, the court considered circumstances similar to those of this case and thus stated:

“Although I have every sympathy with the defendant which has been caught out by no mistake of its on but of its advocates in not filing its statements of defence in time, I do not consider that this simply is this in the triable issues worthy of the name.... I refuse to exercise my discretion to set aside the default judgement entered herein on the 18th April 2013. I dismiss the defendant’s notice of motion with costs to the Plaintiff.”

8. The upshot of the foregoing is that a court would be wasting its time by reopening a case whose outcome is almost certain, to wit, a Defence that is a sham.

9. We are not persuaded that it would serve any purpose to allow the second Application dated 4th May 2021, having found that the Application dated 29th March 2021 has no fee to stand on. The Respondent only compounded his problems by lethargically failing to turn up for his Application’s hearing on 3rd May 2021.

Order 10 Rule 11of theCivil Procedure Rules 2010 provides as follows:

“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.”

10. This discretion is not to be abused. It must be exercised judiciously, and guarded jealously from abuse. Ex Parte Judgment was entered regularly. Consequently, we hereby refuse to set aside our Judgment. REASON WHEREFORE, the Application dated 29th March 2021 must fail, and as such, the Application dated 4th May 2021 is rendered superfluous. Both Applications are dismissed with costs.

ORDERS

We therefore Order as follows:

(a)The Respondents’ Applications dated 29th March 2021 and 4th May 2021 be and are hereby dismissed

(b)We issue an Order of Costs for both Applications to be paid by the Respondents the Claimant;

( c) Mention for directions on 6. 12. 2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 2021

Tribunal Clerk R. Leweri

Ms. Muthoni holding for Njiru for the Claimant

Moseti Evans for the Respondent

HON. J. MWATSAMA

DEPUTY CHAIRPERSON

SIGNED 7. 10. 2021