[2021] KECPT 614 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.95 OF 2019

IMENTI CO-OPERATIVE SAVINGS &

CREDIT SOCIETY LIMITED................................................CLAIMANT

VERSUS

LYDIA NKATHA THARAMBA......................................... RESPONDENT

RULING

1. The Respondent herein, Lydia Nkatha Tharamba filed Notice of Motion as Application dated 23. 3.2020 seeking for:

a. That this Application be certified urgent, service be dispensed with and it be heard ex parte in the first instance;

b. That there be a temporary stay of execution of the decree, all consequential orders and the warrants of arrest dated 13th February, 2020 pending the hearing and determination of this Application;

c. That the Respondent be allowed to pay the decretal sum in monthly installments of Kshs.5000/= until payment in full.

d. That costs be in the cause.

2. The main ground of the application is that judgment and all Consequential Orders were obtained exparte as the Respondent was not personally served with summons to enter Appearance, notice of entry of judgment and Notice to show cause why he should not be committed to civil jail.

3. The Application was opposed vide a Replying Affidavit sworn by Phineas Kinoti Kimathi who is the internal auditor of Claimant on 20. 1.2021 and filed 22. 1.2021.

They confirmed the Respondent was served in all instances she claims she was not served and further that Respondent was not being candid with the truth.

4. Parties were granted leave to file their written submissions on 12. 1.2021. None had been filed by then. On 10. 3.2021 none had been filed and thus a ruling date issued.

5. The right to commit a Judgment Debtor to civil jail is provided for under Section 38 of Civil Procedure Act Cap 21, Laws of Kenya which provides for powers of the court to enforce execution. It provides that:

38 Powers of court to enforce execution.

“ subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree-

a. By delivery of any property specifically decreed;

b. By attachment and sale, or by sale without attachment of any property;

c. By attachment of debts;

d. By arrest and detention in prison of any person;

e. By appointing a receiver or

f. In such other manner as the nature on the relief granted may require.

6. In the case of Mary ...Ndunda – vs- Attorney General and 4 others [2016] eKLR....

7. It should be noted the court can at any time review the orders based on any application brought by Judgment Debtor the Respondent in this instance. The main ground ought to be that the Rules were not followed or procedure not properly followed by either court or parties.

8. The Application before the court has been premised on Order 21 Rule 12, Decree may direct payment by installments:

(i)Where and in so far as a decree I for the payment of money he court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.

The only viable way to set aside an order to be committed to civil jail is when the Respondent changes the mode or manner in which the orders were attained. The Respondent avers that she was not served with any of the pleadings in court.

9. In the celebrated case of Grand Creek LLC & Another - vs- Nathan Chesang Mosor [2015] eKLR held that:

“ Order 22 Rule 31 will come into play where the court, instead of issuing a warrant of arrest, decides to issue a notice calling upon the Judgment Debtor to appear before court on a day specified in the notice and show cause why he should not be committed to prison. But where Judgment Debtor does not appear as directed by the notice, the court will issue a warrant of arrest”

10. In the instant Application, the matter came for Notice to Show Cause on 15. 1.2020. There was an Affidavit of Service filed by the Claimant’s Process Server one Geoffrey Mburugu M’mukiri deponed by one Geoffrey Mburugu M’mukiri sworn on 30. 12. 2019. In this instance as in all other instances of service of summons to enter Appearance dated 28. 4.2019 on 19. 3.2019 and entry of judgment on 21. 8.2019 the Process Server gave an elaborate account of how the Respondent was served but refused to sign. It is on the basis and strength of the Affidavit of Service that Warrants of Arrest were issued as against the Respondent. The Respondent however, denies the same that she was ever served with summons to enter Appearance, Notice of entry of Judgment and on Notice to Show Cause. The Respondent though denying has not proposed to cross- examine the Process Server to challenge the veracity of his averments in all the Affidavit of Service.

In the case of Grand Creek LLC & Another -vs- Nathan Chesang Mosor [2015] eKLR:

“(14) In law, failure by the judgment – debtor to acknowledge or sign the process does not invalidate service at all. In deed the law is that such is good service. See order 5 Civil Procedure Rule.”

11. Having considered all the facts before the Tribunal and Application and Affidavits in support and Replying Affidavit opposing the same, I find that the Application before us has no merit and thus the Application dated 23. 3.2020 is dismissed with costs.

12. The Judgment Creditor to proceed with the execution process.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF MAY, 2021.

Hon. B. Kimemia Chairperson Signed 6. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 6. 5.2021

Mr. P. Gichuki Member Signed 6. 5.2021

Tribunal Clerk Leweri

No appearance for parties.

Hon. B. Kimemia Chairperson Signed 6. 5.2021