[2024] KECPT 232 (KLR)

Juliet & 2 others v Muse; Stima Sacco Society (Interested Party) (Tribunal Case 30 (E033) of 2023) [2024] KECPT 232 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 232 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 30 (E033) of 2023

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

March 7, 2024

Between

Akwiyanga Juliet

1st Claimant

Eric Kamanda Nyamweya

2nd Claimant

Isaac Ndaruga Mururi

3rd Claimant

and

Moureen Nanjala Muse

Respondent

and

Stima Sacco Society

Interested Party

Ruling

1. A Notice of Motion dated 17. 2.2023 under Order 13 Rule 2, Order 5 Rule 1 of the Civil Procedure Rules and Section 1A,1B and 3A of the Civil Procedure Act seeking among others that:a.This whole claim be dispensed with by way of Summary Judgment.b.This Tribunal to strike out and/or dismiss the Defendants Statement of Defence dated 9th February, 2023 for failure to disclose any reasonable Defence.c.This Tribunal to be pleased to enter judgment on admission as against the Defendant for the sum of Kshs. 167,175/= plus interest at court’s rate from 17th November, 2019 until payment in full together with costs of the claim and interests.

2. To the Claimants, the amount they are claiming is liquidated and the Respondent has admitted and/or not challenged that amount and as such she has not raised any plausible Defence the only thing remaining for this Tribunal is to enter Summary Judgment as there is nothing more remaining to be determined.This Tribunal gave directions in relation to the Notice of Motion dated 17th February, 2023 and parties having closed their submissions, there is only one question remaining to be determined.Whether this Tribunal should enter Summary Judgment in favour of the Claimants, strike out the Statement of Defence filed on 9th February, 2023, and award the Claimants their prayer for the sum of kshs.167,175/=.

3. It is trite law that before any court or Tribunal grants the prayer of Summary Judgment and/or strike out a Defence, that court or Tribunal must first satisfy itself that there are no triable issues that have been raised in that particular Statement of Defence or in the Affidavit in opposition to the Application for Summary Judgment.

4. In this particular case, this Tribunal has been hinted to exam whether the filed Statement of Defence or the Affidavit in opposition to the Application for striking out of the Defence, and entering Summary Judgment have raised bona-fide triable issues.To begin with, a bona-fide triable issue as was defined in Job Kilach versus Nation Media Group Limited [2015] eKLR 15“any matter raised by the Respondent that would require further interrogation by the court during a full trial”.To mean the issues raised by the Respondent should be of the character that need judicial examination before judgment can be entered.Second, a triable issue also exists if there is a dispute in the facts as presented by the parties, and to resolve that dispute, the court may need the parties to ventilate on those issues at a full hearing.

5. We have examined the Statement of Defence of the Respondent and her written submissions and we have taken the position that they do not raise any bona-fide issues that need judicial examination or ventilation at a full hearing before judgment can be entered. The real issue in this case is very straightforward. The Respondent took a loan that she is yet to pay for, and upon failing to pay, the interested party exercised his power of recovery by debiting the unpaid amounts to the guarantors and the Respondent is yet to reimburse her guarantors.

IssuesAs to her losing her job, which may be unfortunate, or when the default notices were served and whether they were served irregularly do not really go into the root of this case or are not of the character that need a full trial. The real issue in this case is that she owes parties who guaranteed her, which she has clearly and unequivocally admitted to there is nothing contradictory about that.

6. We also find lack of good faith as we do not see as a Tribunal, any genuine attempt in more than four years to pay the Claimants what they are owed.The claim in question is for a liquidated amount and after four years of waiting, we do not see any reasonable Defence that the Respondent has raised to be ventilated of a full hearing.As such, we would not make them wait any longer.

Final Orders i.Notice of Motion dated 17. 2.2023 succeeds and the Statement of Defence filed on 9th February, 2023 is struck out and judgment is hereby entered on admission in favour of the Claimant’s against Respondent for Kshs. 167,175/= plus costs and interest.

ii.Cost of the claim awarded to the Claimants.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahKipruto holding for Kiptunge for Applicant.Odhiambo holding brief for Raballa for RespondentHon. Beatrice Kimemia Chairperson Signed 7. 3.2024Odhiambo : I pray for 30 days stay of execution.Kipruto: Security be placed.Order: 21 days stay of execution granted.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024