[2024] KECPT 1726 (KLR)

Golden Pillar Sacco Limited v Mukiira (Tribunal Case 118 (E105) of 2022) [2024] KECPT 1726 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1726 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 118 (E105) of 2022

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

October 31, 2024

Between

Golden Pillar Sacco Limited

Claimant

and

Jonathan Kinoti Mukiira

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 20TH June 2023 supported by an affidavit sworn by the Applicant Jonathan Kinoti Mukiira and brought under Sections1A, 1B, 3 and 3A of the Civil Procedure Act Cap 21 of the Laws of Kenya and Order 10 Rule 11 of the Civil Procedure Rules 2010 and All enabling Provisions of the Law. The application seeks the following orders:1. Spent2. Spent3. That the exparte judgment issued against the Respondent on 3rd November 2022 be set aside and the applicant be allowed to defend this suit.4. That the Honourable court be pleased to order the Claimant to dully serve the Applicant with all the pleadings filed in this claim.5. That the Applicant be granted costs of the application.

2. The Application is premised on the grounds on its face which are inter alia that: An ex-parte judgement was entered against the Applicant on 3rd November 2022. That the Applicant was never served with summons to enter appearance and only came to know of the proceedings after he was served with the notice to show cause.

3. The Application was canvassed via written submissions and both parties filed their submissions.

4. In their submissions, the Applicant urges the court to allow the Application as prayed. The Applicant submits that they were never served and that there are various discrepancies in the affidavit of service and the same offend Order 5 Rule 15 of the Civil Procedure Rules.

5. The Respondents, on the hand urges this court to dismiss the application. The Respondents submit that the Applicant was duly served, and that the judgement that was entered was regular. They also submit that the Applicant has not shown sufficient cause to warrant setting aside of the ex-parte judgement and that they have even failed to file a draft Defence.

DIVISION - Issues for Determination 6. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the interlocutory judgement entered by this Tribunal on 3rd November 2022.

DIVISION - Analysis 7. The issue in this case is that the Applicant claims that he was not served with the service to enter appearance, while there is an affidavit of service on record. The Affidavit of Service filed by a Court Process Server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo – Vs – Bodi Bach [1987] eKLR, where the Court of Appeal held as follows:-“There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”.

8. It is now upon the person alleging that service was not done to show that indeed such Affidavit of Service was defective. In the instant case, the Applicant claims that it was never served at all.

9. In their Response, the Respondent avers that it indeed served the Applicant. On perusing the file, there is indeed a return of service that has been duly filed and is dated 25th March 2022. Paragraph 4 of the Affidavit indicate that the Respondent declined to sign the summons.

10. In Abdirahaman Abdi v Safi Petroleum Products Ltd. & 6 others [2011] eKLR, the Court of Appeal while discussing the input of article 159 of the Constitution in dispute resolution held:-…………..Article 159 (2) (d) of the Constitution makes it abundantly clear that the court has to do justice between the parties without undue regard to technicalities of procedure. That is not however to say that procedural improprieties are to be ignored altogether. The court has to weigh the prejudice that is likely to be suffered by the innocent party and weigh it against the prejudice to be suffered by the offending party ………...”

11. The question that this court asks itself is whether the Applicant’s Application is merited. From the above analysis, we note that the court has a discrection on whether to allow the Application or not based on the circumstances that led to the interlocutory judgment. The Applicant claims that he was not served while the Respondent avers that he did serve the Applicant. It is the contention of the Respondent that although service was done, the Applicant did not acknowledge receipt of the summons by signing on them. It is, therefore, the Applicant's word as against the Respondent's word. It is also not clear from the affidavit of service what time the Applicant was served, if the process server left the Claimant’s office at 5:30 pm.

12. The other question that this court has to ask itself is whether the Applicant’s Defence raises any triable issue. However, this court is not in a position to determine this because the Applicant did not include a draft Defence in his application, reason being that the Claimants are yet to serve the same upon him. The Applicants wrote a letter dated 12th June 2023 to that effect but the Respondent makes no mention of this. We are inclined to belief to belief the Applicant since the Respondent has not rebutted this assertion.

13. This Tribunal is inclined to give a benefit of doubt to the Applicant, and orders as follows;a.The interlocutory judgement entered on 3rd November 2022 is hereby set aside.b.The Applicant is to pay the Respondent thrown away costs of Kshs. 10,000/-c.The Claimant/Respondent to serve the Applicant with the requisite pleadings within 14 days of this ruling.d.The Respondent to file and serve their pleadings, witness statement and documents within 21 days herein.e.Costs to be in the cause.f.Pre-trial directions on 6. 2.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS31ST DAY OFOCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 10. 2024HON. PAUL AOL MEMBER SIGNED 31. 10. 2024Tribunal Clerk JemimahWambua for Claimant/RespondentNo appearance for Respondent