[2025] KECPT 222 (KLR)

Joinas Sacco Society Limited v Njogu (Tribunal Case 252/E352 of 2023) [2025] KECPT 222 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 222 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 252/E352 of 2023

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

March 27, 2025

Between

Joinas Sacco Society Limited

Claimant

and

Wilson Gatere Njogu

Respondent

Ruling

1. The Notice of Motion Application dated 30th January, 2024 is brought under Order 10 Rule 11, Order 22 of the Civil Procedure Rules, Section 1A,1B, 3A of the Civil Procedure Act, Section 37 of the Small Claims Court Acts seeking orders:i.Spentii.Spentiii.The ex-parte judgment entered in default of appearance and Defence and all consequential orders thereto, be set aside and the Respondent be granted leave to appear and defend the suitiv.The Respondent be allowed to enter appearance and file and serve their Statement of Defence within 14 days of the Orders of the court

2. The Application was based on the grounds:i.That an ex-parte judgment was entered on 15th July 2023 and the Respondent was not given the opportunity to participate in the proceedingsii.That the Respondent has a good defense to the Claimant’s Statement of Claim but has been denied the opportunity to participate in the proceedingsiii.That the Respondent instructed the firm of Mengesa Advocates and was perplexed to be served with the decree and subsequent visit to the firm's offices he leant that the proprietor left the country for America without handing over the matteriv.That the Respondent has perused the file in the company of his new Advocates and has learnt that no action was taken in the file leading to the current predicament which is not of his own makingV.That the Respondent has been denied the opportunity to be heard on merit and to defend themselvesvi.That the Respondent is desirous of defending the suit and should be given the opportunity to be heard in accordance to rules of justice and Article 50 of the Constitutionvii.That it is only just and equitable that a stay of execution of the judgment and decree be granted pending hearing and final determination of the applicationviii.That if there is no stay of execution of the ex-parte judgment and decree and all the consequential orders are not set aside, the Respondent will suffer prejudice and the suit shall be rendered nugatoryix.That the Claimant will suffer no prejudice if the application was granted and judgment set aside, and the Respondent granted leave to defend

3. This Tribunal on 8th February, 2024 gave directions for the application to be served on all the parties, with a hearing date set for 10th April, 2024.

4. The Claimants through their Chairperson Peter Kinuthia Mugacha filed a Replying Affidavit dated 17th September, 2024 stating among others:i.That the Application is misconceived, bad in law, incompetent and ought to be out-rightly dismissed with costs since the Claimant has failed to attach the impugned decree or judgment whose Application is premisedii.That the Respondent was duly served physically in person with summons to enter appearance, the plaint and accompanying documents and the Respondent duly acknowledged receipt of service of summons and plaint by affixing his signature, proving that he was indeed servediii.That the Respondent failed to enter appearance or file a Defence within the prescribed timelines leading to request for judgment by the Claimant, which the Honorable Court entered on 15th August 2023 after being satisfied that the Respondent was duly servediv.That the Honorable Court delivered regular ex-parte judgment on 15th August 2023 since the Respondent was duly served with summons to enter appearance but failed, ignored and refused to enter appearancev.That the Respondent's failure to enter appearance within prescribed period contained in the summons was intended to delay and obstruct the course of justice, and the Respondent has not advanced sufficient reasons for setting aside of the judgement and decree of the Courtvi.That although the Court’s discretion to set aside a regular ex-parte judgement is wide, it must be exercised judiciously and for good reason, and in that regard the Respondent has failed to show that the circumstances they were relying on to seek to set aside the regular judgement were reasonable and that his failure to attend court was excusablevii.That the Respondent's assertion that he instructed the firm of Mengesa Advocates to appear in the matter is just an afterthought since there is no evidence of instructions given to the firm. In any event, it was the Respondent's duty to follow up on the progress of his matter but instead decided to be indolentviii.That the Respondent’s draft defense does not raise a reasonable cause of action or triable issues, since the Respondent unequivocally admitted and acknowledged owing a debt to the Respondent via a letter dated 14th October 2020 and even requested to pay the same as loan on monthly basisix.That by the Respondent’s own admission of debt to the Claimant, the Respondent is estopped from alleging limitation of actions against the Claimant’s suit because six (6) years has not lapsed from the date of making the admissionx.That the Respondent will not suffer any prejudice if orders of stay of execution is not granted and the decree is executed since he admits the debt and the Claimant should therefore be allowed to enjoy the fruits of their judgmentxi.That the prayer for stay of execution lacks merit since there is no evidence of imminent danger of execution by the Claimantxii.That the Respondent took inordinate period of delay since the judgment was entered on 15th August 2023 and only rose into action after being served with a decree on 22nd January 2024xiii.That if the Honorable Court is inclined to grant the Respondent’s prayers as sought, the cost of the application should be awarded to the Claimantxiv.That the Notice of Motion Application lacks merit and should be dismissed with costs.

5. This Tribunal on 18th September, 2024 made further orders for the Application to be canvassed by way of written submissions. The Respondent filed their submissions stating among others:1. That he is not contesting service, but that his Advocate on record left the country to America without notifying him of the development2. That the mistakes of an advocate should not be visited upon their client3. That the Claimant will not suffer any injustice as they will have their day in court and urge the court to allow the Application so that the matter may be determined on merit4. That the Respondent has a good Defence as he has never executed a document in application for the said loan facility or entered into any contract for the material credit facility of Kshs. 1,062,281. 75/= and invites the claimant to proof of any allegation to the contrary5. That the Respondent cannot be sued for debt owed by Gates Security Limited which is a separate entity from the Respondent

6. The Claimant on their end filed their written submissions dated 3rd October, 2024 stating among others:1. That the Respondent has not denied being served, neither has he denied knowing about the existence of the case. He only alleges that he instructed the firm of Mengesa Advocates who failed to take any action hence the ex-parte judgment2. That the Respondent has not attached any proof of instructions to show that he had instructed the firm of Mengesa Advocates3. That the judgment was entered regularly and the same ought to stand as the Respondent was served in person4. That merely blaming the alleged advocates (Mengesa) is not sufficient reason to set aside the regular ex-parte judgment5. That the annexed Defense does not raise any triable issues and does not call for leave to be allowed to be filed out of time

7. We have considered the Application, the Replying Affidavit and the Written Submissions filed, and the only question remaining for determination is as to whether the threshold for setting aside of the judgement delivered on 15th July, 2023 has been met.

Has the threshold for setting aside of th judgement delivered on 15th July, 2023 been met? 8. The beginning point is to state that in as much as there is no doubt that the judgement delivered on 15th July, 2023 was a regular judgement, the celebrated court decision of Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193 still mandates this Tribunal to look at the unique circumstances of each case. In that case, the court stated that:“A judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter, the good sense of the matter, were certainly matters for the judge. It is an unconditional unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a defence on the merits, namely a prima facie defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to revoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure.”

9. In essence therefore, this Tribunal has to consider a number of things before making the decision as to set aside or not disturb its ruling of 15th July, 2023. Those things include:a.Whether the firm of Mengesa Advocates had instructions to defend the Respondent in the Suitb.Whether the Application has been served without inordinate delayc.Whether the annexed Defense raises triable issues, and lastd.Whether either party will suffer prejudice that cannot be compensated by costs.

10. In as much as from court records there is no evidence that the firm of Mengesa Advocates had instructions to enter appearance, and also that the Application has been filed almost six (6) months after the delivery of this Tribunal’s judgement, it is our considered decision that the annexed Statement of Defence raises some triable issues which need determination on merit, like the allegations:“that the Respondent never executed a document in application for the said loan facility or entered into any contract for the material credit facility of Kshs. 1,062,281. 75/=, andThat the Respondent cannot be sued for debt owed by Gates Security Limited which is a separate entity from the Respondent.”

11. It is also our considered decision that the Claimant will not be prejudiced or inconvenienced by what they cannot be compensated by costs.

Final Orders: 12. Application dated 30. 1.2024 is found to be with merit and allowed as follows:1. The Notice of Motion Application dated 30th January, 2024 succeeds2. The judgment entered on 15th July, 2023 and all Consequential Orders thereto are set aside3. The annexed Statement of Defence filed on 30th January, 2024 is admitted parties to file 7 days from today.4. Costs in the Cause5. Mention for pre-trial directions on 17. 9.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia - Chairperson Signed 27. 3.2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe - Member Signed 27. 3.2025Hon. Fridah Lotuiya - Member Signed 27. 3.2025Hon. Philip Gichuki - Member Signed 27. 3.2025Hon. Michael Chesikaw - Member Signed 27. 3.2025Tribunal Clerk JonahKirui advocate holding brief for Juma advocate for the Claimant.CNG advocate for Respondent – No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 27. 3.2025