[2023] KECPT 70 (KLR)

Jumuika Sacco Society Ltd v Otieno (Tribunal Case 151 of 2020) [2023] KECPT 70 (KLR) (Civ) (28 February 2023) (Ruling)

Neutral citation: [2023] KECPT 70 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 151 of 2020

BM Kimemia, Chair, J. Mwatsama, Vice Chair & M. Mbeneka, Member

February 28, 2023

Between

Jumuika Sacco Society Ltd

Claimant

and

Samson Obongo Otieno

Respondent

Ruling

1. Application dated 21/9/22 is for consideration. The same has been brought under Section 1A, 1B, 3, 3A of the Civil Procedure Act order 7 rule 1, order 10 rule, order 11, order 50 rule 2 & of the Civil Procedure Rules and/or applicable provisions of the law.The application seeks for orders;i.Spent.ii.Spent.iii.That at the hearing of this matter interparties the Honourable Court be pleased to set aside and /or vacate the exparte judgment dated May 5, 2021 herein and any consequential orders and the Respondent be allowed to defend the Plaintiff’s suit on merit.iv.That the respondent be granted leave to file its defence out of time and the annexed draft defence be deemed duly filed upon payment of the requisite court fees.v.That costs of this application be provided for.

2. It is supported by Affidavit of Samson Oboyo Otieno sworn on September 21, 2022 to which he avers that there was an earlier attempt by Claimant/Respondent to get a security from him but the same was defeated as Tribunal dismissed the Application dated May 5, 2020. Later the Applicant states he lost contact with the Advocate and this could not instruct him however the matter proceeded and interim judgement entered against him.He has since annexed a draft Defence which he wants to be considered

3. The claimant respondent filed grounds of opposition dated October 1, 2022 filed on October 9, 2022. On grounds:i.The Application is mischievous and designed to frustrate the Claimant from enjoying the fruits of its judgment.ii.The Application is fatally defective.iii.The Application is an afterthought coming more than one year after the judgment was entered and the court file closed.iv.The ground of opposition upon which the Application is based on do not warrant the court exercising its discretion to set aside.Issue for determinationIssue oneWhether the interim Judgment should be set aside.The Respondent/Applicant was represented initially and Claims he fell out with his Advocate for a while.The reasons given by the Claimant why the Interim Judgment ought to be set aside is not convincing. He indeed has come to delay the matter.His Advocate filed Notice of Appointment on May 14, 2020 meaning all along the Respondent/Applicant knew about the case.A date for Pre-trial Directions was given on June 18, 2020. All along the Respondent Applicant was represented and is counsel did not also participate on June 18, 2020 despite representing his client.They do not deny they were not unaware of the date but simply lost track with the Advocate.As a result, the Claimant filed Request for Judgement rightly so on October 29,2020 leading to the entry of default judgement.2 years later when decree has been extracted the Respondent Claims they are still interested in the Claim having been woken up from slumber by the Claimants.

4. No sufficient reasons have been advanced by the Respondent/Applicant to convince us that he was keen on proceeding and defending with the matter. We have further looked into the draft Defence and we confirm the same consists of mere denial and nothing substantial is raised from the Defence.In the case of CA No E10 of 2020 – Machakos Muriithi Charles and Another v Jacob Atina Nyagesuhe. Justice Odunga (J) as he was then in paragraph 28 stated;“in considering whether or not to set aside the judgment, a judge has to consider the matter in the height of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it while be just and reasonable to set aside or vary the judgment if necessary upon the terms to the imposed”

5. In the matter with us the Respondent/Applicant can be said to have acquiesced on his rights more so having taken 2 years to file a Defence.For this reason, the Application dated September 21, 2022 is found to be without merit and dismissed with costs to the Claimant.

6. Bill of Cost dated June 22 is taxed at Kshs219,142. 49/=.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2023. Hon. Beatrice Kimemia Chairperson Signed 28. 2.2023Hon. J. Mwatsama Deputy Chairperson Signed 28. 2.2023M. Mbeneka Member Signed 28. 2.2023Tribunal Clerk J. MutaiHon. J. Mwatsama Deputy Chairperson Signed 28. 2.2023