[2021] KECPT 255 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.233 OF 2020

FREDRICK KINYUA & 4 OTHERS.....................CLAIMANTS

VERSUS

GIDEON GITONGA............................................RESPONDENT

AND

JOCET AUCTIONEERS........................INTERESTED PARTY

RULING

1. This is a Ruling on an Application dated 18. 3.2021 for setting aside of judgment entered on 14. 10. 2020 in default of appearance and Reference upon a Request for Judgment dated 2. 10. 2020.

The Orders were “ for summary judgment entered in favour of the Claimant against the Respondent for Kshs.49,191. 20/= plus costs and interest in the suit. “

2. The Application seeks for the following orders:

(i)That this matter be certified as urgent and hearing be dispensed with in the first instance.

(ii)That the Tribunal stay execution pending hearing and determination of this application.

(iii)That the tribunal be pleased to set aside judgment of Kshs.49,191. 20/= and replace it with one of Kshs.36,170/= which I truly and justly owe the decree holders.

(iv)That he be allowed to pay the decretal amount by kshs.3000/= every 5th day of the month starting April, 2021 until when I shall receive my pension which is currently being processed, then pay off the balance.

(v)That the tribunal compel the interested party to accept Kshs.1,758/= per scale on the Auctioneers Act.

(vi)That costs of this application.

The Respondent/Applicant now seeks to set aside the default judgment on grounds that the proclaimed items belong to his wife and that the Decree Holder can attach his pension instead of his wife’s items.

The same is supported by the Affidavit of Gideon Gitonga sworn on 22. 3.2021.

3. In response the Claimant/Respondent filed a Replying Affidavit on 7. 5.2021 sworn by Fredrick Kinyua stating:

(i)The Respondent has not denied being served with statement of claim and summons.

(ii)The Respondent has admitted liability to Claimant’s and has not given justifiable reasons to stay judgment.

(iii)That the Respondent claims the items proclaimed are not his and alleges they belong to the witness. It would be proper for his wife to file objector’s Application.

(iv)The Respondent has not annexed a draft Defence or any evidence to prove his alleged figure of Kshs.36,170/= and not Kshs. 49, 191. 20/=.

(v)The Respondent is a man of means and is able to settle the debt.

4. Parties were ordered to file written submissions to dispose off the Application and only the Respondent/Applicant had filed their submissions which were in the court record as at the time of writing this Ruling.

5. ISSUES FOR DETERMINATION

(i) Whether the default judgment was regular judgment on a liquidated claim.

(ii) Whether the Respondent/Applicant should be granted leave to defend the claim.

Issue one:

Whether the default judgment was regular judgment on a liquidated claim.

Key issue in default judgment is one of service of the Summons to Enter Appearance.

Question - Was the Respondent/Applicant served with the summons to Enter Appearance and Statement of Claim?

The Respondent does not deny service and only claims for setting aside and disputes the amount in question.

6. The Principles for setting aside judgment were set out in the collaborated case of Mbogo – vs- shah (1968) EA 93, 95.

“ This discretion to set aside an exparte judgment is intended 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 cause of justice.”

Regular or irregular judgment

The Court of Appeal in James Kanyita Nderitu & Another - vs- Marios Philotas Ghihes & Another [2016] eKLR- it was stated as:

“ An irregular judgment is one which the Judgment Debtor not been heard by reason lack of proper service of summons is one which the court should set aside ex debito justiciae”.

Existence of Triable Issues:

This can only be exhibited if Claimant Defence has been annexed to the Application for setting aside for the court to be able to appreciate the Respondent’s defence if at all.

7. In the absence of the same it is difficult for the court to determine if indeed there are any triable issues.

In the words of Newbold P, in the case of Zola and Another - vs- Ralli Brothers Limited and Another [1969] EA 691 at page 694that……………

“ Order 35 is intended to enable a plaintiff with a liquidated claim, to which there is clearly no good Defence, to obtain a quick and summary judgment without being unnecessary kept from what is due to him by the delaying tactics of the Defendant.”

Issue two:

Whether the Respondent/Applicant should be granted leave to defend the claim.

In the instant case we are not able to determine if there is a Defence if at all. All we have is an admission by the Respondent owing the Claimant Kshs.36,170/=and notKshs.49,191. 20/=as per the summary judgment.

8. DETERMINATION

Service as per Order 5 Rule 6- Mode of service is not denied by the Respondent/Applicant. We find service was proper within Order 5 Rule 8 Civil Procedure Rules and the same is unchallenged.

Judgment upon a liquidated demand Order 10 Rule 4:

“ 4 (1) where the plaint makes a liquidated demand only if the Defendant fails to appeal on or before the day fixed in the submissions or all the Defendants fail to appear the court shall, on request in form No. 13 of Appendix A, enter judgment against the Defendant or Defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit at such rate as the court thinks reasonable, to the date of judgment’s costs.”

Although the Respondent/Applicant confirms/admits to owing the Claimant Kshs.36,170/= only there is a disputed amount of (49,191-36,170=Kshs. 13,021) to which ought to have gone for trial.

However with the lack of Claimant Defence attached and or Statements of Admission the court is constrained to issue the said orders.

The issue must be a bonafide triable issue between the parties.

With the above, we find no reason to disturb the summary judgment entered. We note it is a liquidated claim and Respondent admits to an amount of Kshs.36,170. No reason has been forwarded as to why the Applicant/Respondent should not pay the entire judgment sum.

We find the Respondent/applicant has not convinced the court of any triable issue if at all to convince us to set aside judgment.

UPSHOT

The default judgment of the Tribunal on 14. 10. 2020 was regularly entered and the Application dated 18. 3.2021 is dismissed for lack of merit.

Costs to be borne by Respondent/Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT MOMBASA THIS 8TH DAY OF JULY, 2021.

Hon. B. Kimemia Chairperson Signed 8. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 8. 7.2021

Mr. P. Gichuki Member Signed 8. 7.2021

Tribunal Clerk Charles Maina