[2021] KECPT 242 (KLR)
The tribunal found that the respondent's defence consisted solely of denials and did not raise any substantive triable issues. The only issue raised was the non-refundable share capital of Kshs. 20,500, which was admitted by both parties. The respondent failed to provide evidence of any liabilities or other defences...
Source-derived case information.
- Citation
- [2021] KECPT 242 (KLR)
- Parties
- Applicant: Frankline Muthomi Njogu; Respondent: National Hospital Insurance Fund Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 482 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Defence and Enter Summary Judgment
- Outcome
- application allowed; summary judgment entered for applicant
- Legal Topics
- Striking Out of Pleadings, Summary Judgment, Admissions in Pleadings, Refund of Contributions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Frankline Muthomi Njogu
Applicant
National Hospital Insurance Fund Sacco Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether the respondent's defence discloses any triable issues or is a mere denial.
- 2 Whether the applicant is entitled to summary judgment based on admissions and lack of substantive defence.
- 3 Whether the respondent's claim of non-refundable share capital is valid.
Ratio Decidendi
The tribunal found that the respondent's defence consisted solely of denials and did not raise any substantive triable issues. The only issue raised was the non-refundable share capital of Kshs. 20,500, which was admitted by both parties. The respondent failed to provide evidence of any liabilities or other defences against the applicant's claim for refund of contributions. The tribunal held that, in light of the admissions and lack of substantive defence, the applicant was entitled to summary judgment for the amount claimed less the non-refundable share capital. The application to strike out the defence was therefore allowed, and judgment was entered in favour of the applicant for the...
Court Disposition
application allowed; summary judgment entered for applicant
Orders
- Judgment is entered in favour of the applicant against the respondent for Kshs. 738,500 plus costs and interest from the date of judgment/ruling.
- The respondent's defence is struck out.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.482 OF 2020
FRANKLINE MUTHOMI NJOGU..................................................CLAIMANT
VERSUS
NATIONAL HOSPITAL INSURANCE FUND
SACCO SOCIETY LIMITED.....................................................RESPONDENT
RULING
1. The Application for determination is for striking out the Respondent’s defence.
The Application is dated 19. 2.2021 and is brought under Section 1A, 1B and 3A Civil Procedure Act Cap 21 and Order 51 Rule 1 Civil Procedure Rules, Order 36 Rule (1) (1)and all other enabling provisions of the law.
The Application seeks for the following Orders:
a. That this Honorable court be pleased to strike out the Respondent’s defence herein dated 12th January 2021 and order that judgment be entered in favour of the Claimant against the Respondent as prayed for in the Statement of Claim plus costs and interest thereof.
b. That the Respondent to pay costs of this Application.
c. That the Honourable court be pleased to issue any other relief that it may deem fit.
2. The same is premised on the grounds on the face of the Application and supported by Affidavit of Frankline Muthomi Njogu sworn on 19. 2.2021 to which he averred that the evidence the Applicant has adduced through his list of documents dated 30. 11. 2020filed on 8. 12. 2020 clearly shows he has a strong case against the Respondent.
The Respondent Statement of Defence is a sham and is aimed at delaying the course of justice as it is founded on more denials. The Respondent in his defence has not denied the Applicant has contributions with them and that he did notify the Respondent of his intention to withdraw from the society vide a letter dated 15. 7.2020.
The only base of contention is that the Respondent claims there is share capital which ought not to be refunded and Applicant therefore prays for Summary Judgment against the Respondent.
The Respondent on their part filed a Replying Affidavit dated 30. 4.2021 sworn by Sophy B. Otiu to which Respondent stated their defence is in no way scandalous, frivolous, vexatious or unintelligible. The defence raised ought to be heard on merit at trial.
Parties were directed to file written submissions to dispose off the Application.
The Claimant/Applicant filed their submissions dated 7. 6.2021 on 8. 6.2021 and Respondent filed their written submissions dated 15. 6.2021 on even date which have been taken into consideration.
3. Analysis
Order 13 Rule 2 Civil Procedure Rules 2010 clearly state
“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties ; and the court may upon such application make such order, or give such judgment, as the court may think just. “
The Claimant/ Applicant submits that the Respondent in paragraph 3 of their defence admits that the Claimant shares are Kshs.795,000/= less share membership capital of Kshs. 20,500/=. They stated the case should be determined summarily.
The Respondent on the other hand submitted the law governing striking out of pleadings is founded in Order 2 Rule 15 Civil Procedure Rules 2010 which states :
“ (1) at any stage of the proceedings the court may order to be struck out or amended any pleading on the grounds that:
a. It discloses no reasonable cause of action or defence in law; or
b. It is scandalous, frivolous or vexatious; or
c. It may prejudice , embarrass or delay the fair trial of the action; or
d. It is otherwise an abuse of the process of the court;”
They stated the Claimant seeks for Kshs. 817,000/= which is disputed however, the Respondent did not plead any liabilities against the Claimant.
This is a matter for refund, and it’s clear that the Claimant was making contributions as per the Statement of Account.
The issues to be determined are:
Issue One:
Does the defence raise triable issues ?
ISSUE ONE
A cursory perusal of the Respondent’s defence shows a defence that is purely full of denials. By that fact alone they offer nothing else but a defence for the Respondent.
The principle that guide the court in determining whether to strike out a pleading were set out in the case of :
“ DT Dobie & company (Kenya) Limited – vs- Joseph Mbaria Muchina and Another CA 37 of 1978 [1980]eKLR.
Madan JA stated:
“...the court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable case of action on being otherwise an abuse of the process of the court.....”
The case by Respondent in their submissions
Transcend Media Group Limited - vs- IEBC[2015] eKLR court held:
“... striking out of a case and in the process, deprive a party of the opportunity to present their case has been held over and over the years to be a draconian measure which ought to be eyed only as a last resort and even the only in the clearest of case.”
We note that this is a clear case where the Claimant made monthly contributions which are now claimed and due. The Respondent filed written submissions in the matter as ordered. The only issue raised in the defence is the deductible amounts (non-refundable) Kshs.20,500/=.
The Respondent did not file any documents with the Replying Affidavit to show that the Claimant has any liabilities in terms of guarantorship or loans. The defence therefore amounts to a mere denial and the only issue raised is the non- refundable amount of Kshs.20,500/= .
We therefore allow the Application dated 19. 2.2021 in the following terms:
1. Judgment is entered in favour of the Claimant against the Respondent for Kshs.759,000/= less Kshs.20,500/= total Kshs. 738,500/= plus costs and interest in the suit from the date of judgment/Ruling.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.
HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021
HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 7.2021
MR. GITONGA KAMITI MEMBER SIGNED 29. 7.2021
TRIBUNAL CLERK CHARLES MAINA
MISS KEMUNTO ADVOCATE FOR CLAIMANT: PRESENT
OMANGI GICHANE ADVOCATE FOR RESPONDENT : PRESENT
HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021