[2021] KECPT 21 (KLR)
The Tribunal found that the respondent's defence consisted of mere denials and did not raise any triable issues. The respondent failed to prove that Kshs. 20,500 was a non-refundable fee or to disclose the channels for refund. The Tribunal relied on the principle that the burden of proof lies on the party alleging a...
Source-derived case information.
- Citation
- [2021] KECPT 21 (KLR)
- Parties
- Applicant: Janet Wawira Njoka; Respondent: NHIF Savings & Credit Society Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 43 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Defence and Enter Judgment
- Outcome
- application allowed; defence struck out; judgment for claimant
- Legal Topics
- Striking Out of Defence, Summary Judgment, Costs Award, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Janet Wawira Njoka
Applicant
NHIF Savings & Credit Society Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Defence and Enter Judgment
Legal Issues
- 1 Whether the respondent's defence discloses any reasonable triable issue.
- 2 Whether the defence should be struck out under Order 2 Rule 15(a) of the Civil Procedure Rules 2010.
- 3 Whether the claimant is entitled to judgment as prayed for the sum claimed, interest, and costs.
Ratio Decidendi
The Tribunal found that the respondent's defence consisted of mere denials and did not raise any triable issues. The respondent failed to prove that Kshs. 20,500 was a non-refundable fee or to disclose the channels for refund. The Tribunal relied on the principle that the burden of proof lies on the party alleging a fact, and the respondent abdicated this duty. The Tribunal exercised its discretion under Order 2 Rule 15(a) of the Civil Procedure Rules 2010 to strike out the defence, finding it disclosed no reasonable defence in law. Consequently, judgment was entered for the claimant as prayed, with costs and interest, and the claimant was directed to file a bill of costs.
Court Disposition
application allowed; defence struck out; judgment for claimant
Orders
- The claimant's application dated 26th January 2021 is allowed, with costs.
- Judgment is entered for the claimant for Kshs. 506,000 together with costs and interest thereon.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. 43 OF 2020
JANET WAWIRA NJOKA...........................................CLAIMANT
-VERSUS-
NHIF SAVINGS & CREDIT SOCIETY LTD.......RESPONDENT
RULING
1. This Claim was instituted by way of a Statement of Claim dated 20th December, 2019and filed on 7th February, 2020. The Respondents filed a Statement of Defence on 11th September 2020. The Claimant subsequently filed an application dated 26th January 2021, seeking for Orders, inter alia;
a. THAT the Honourable Tribunal be pleased to strike out the Defence filed on 17th July 2020.
b. THAT the Honourable Tribunal be pleased to enter Judgment in favour of the Claimant against the respondent for a sum of Kshs. 506,000/=as prayed in the Statement of Claim, plus interests and costs.
2. In the grounds on the face of the Application, the Claimant has argued that the Respondent’s defence is a sham and consists of mere denials, and the said
Defence does not raise any triable issues, for which reason it should be struck out. The Defence implicitly acknowledges the principal debt, but argues that it should be surcharged Kshs. 20,500/= as a non-refundable share capital and membership fee.
3. We have looked at the Defence, and it indeed consists of mere denials. The Defence is a sham. It is one which ought to be struck out, under Order 2 Rule 15(a) of the Civil Procedure Rules 2010, as it discloses no reasonable defence in law. The only argument being preferred by the Respondents is that the Claimant has not pursued the channels for refund. The Respondent has not disclosed the said channels.
4. What this Tribunal can note is that there is a letter dated 14th June 2017 from the Claimant, notifying the Respondent of the Claimant’s intention to withdraw from the SACCO. The Respondent acknowledged the withdrawal, through a letter dated 28th August 2017, and had no objections to the said withdrawal. We thus find that there is no plausible reason as to why the Respondent has followed through the refunds to the Claimant.
5. In the case of Nguruman Limited –vs – Shompole Group Ranch & Others, Civil Appeal Number 73 of 204 [2007] 2EA 353the Court of Appeal stated that the power to strike out pleadings is a discretionary one and it is to be exercised with the greatest care and caution. This was echoed in the case of DT Dobie & Company [k] Limited -vs- Joseph Muchina & Another CA 37 of 1978 [1980] eKLR.
6. This Tribunal finds that the Respondent has not put forth a defence, and not supported their defence that Kshs. 20,500/= is a non-refundable fee. Whoever alleges must prove the existence of a fact [videSection 107(1) of the Evidence Act cap 80 of the Laws of Kenya]: the Respondent abdicated their duty to furnish this Tribunal with the proof that there exists a non-refundable share capital and membership fee. As such, it is with tremendous caution that we find that the Defence must be struck out, and a judgment as prayed in the Statement of Claim be entered in favour of the Claimant.
7. Section 27(1) of the Civil Procedure Act bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimant is entitled thereto, and we thus so order.
ORDERS
We therefore Order as follows:
a. The Claimant’s Application dated 26th January 2021 is allowed, with costs;
b. Judgment be and is hereby entered for the Claimant, for Kshs. 506,000/= together with costs and interest thereon;
c. The Claimant is directed to file a Bill of Costs within 30 days hereof.
d. Mention for further Directions on 14. 2.2022.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021
Hon. B. Kimemia Chairperson Signed 4. 11. 2021
Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021
Mr. Gitonga Kamiti Member Signed 4. 11. 2021
Mr. B. Akusala Member Signed 4. 11. 2021
Mr. P. Gichuki Member Signed 4. 11. 2021
Tribunal Clerk R. Leweri
Janet Wawire – no appearance
Omangi Gichana for the Respondent
Omangi- We had not canvassed the matter and the same has been placed for Ruling.
Tribunal : Counsel to make necessary application.
Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021