https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/241

**REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT KISUMU** **TRIBUNAL CASE No. E069/2024** **(Coram: Hon. J. Mwatsama- Ag. Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chekisaw- Member and Hon. P. Aol- Member.)** **CYLUS AZEGERE KADURENGE……………………………..……... CLAIMANT** **-VERSUS-** **TUNZA HOUSING CO-OPERATIVE SOCIETY……………....… RESPONDENT** **RULING OF THE TRIBUNAL** 1. Before the Tribunal is the Claimant’s Notice of Motion seeking the following orders: 2. That the Respondent’s Statement of Response be struck out and/or the claim be summarily dismissed against the Respondent; 3. That summary judgment be entered for the Claimant as prayed in the Statement of Claim; 4. That costs of the Application be borne by the Respondent. 5. The Application arises from a dispute involving an alleged payment of **Kshs. 2,100,000/=** said to have been made by the Claimant to the Respondent Sacco for allocation of six parcels of land, which the Claimant contends was never effected. 6. The Claimant avers that he remitted the sum of **Kshs. 2,100,000/=** to the Respondent for purposes of acquiring six parcels of land under a proposed allocation scheme by the Sacco. 7. The Respondent denies receiving the said funds as alleged. It further pleads that although land intended for distribution to members was fraudulently acquired by a third party, the Sacco notified members, including the Claimant, and subsequently identified alternative land available for acquisition. 8. In reply, the Claimant terms the Respondent’s explanation a sham and contends that if alternative land existed, he ought to have been given an option either to accept it or be refunded. 9. The issue for determination is whether the Application is merited, whether the Respondent’s Statement of Response should be struck out and whether the Claimant is entitled to Summary Judgment. 10. The power to strike out pleadings is discretionary and ought to be exercised sparingly and only in plain and obvious cases. In **D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1**, the Court held that no suit ought to be summarily dismissed unless it appears so hopeless that it plainly discloses no reasonable cause of action and is beyond redemption. 11. Similarly, summary judgment is only available where the defense raises no bona fide triable issue. In **Industrial and Commercial Development Corporation v Daber Enterprises Ltd [2000] 1 EA 75**, the Court held that where a defendant demonstrates even one triable issue, the matter ought to proceed to full hearing. 12. The Tribunal has also considered the principles under **Order 2 Rule 15** and **Order 36 of the Civil Procedure Rules**, which guide the court on striking out pleadings and entry of Summary Judgment respectively. 13. In the present case, the Respondent has denied receipt of the alleged payment and has raised issues regarding the existence and performance of the alleged land transaction, including alleged fraud affecting the original land and the availability of alternative land. These are substantive issues that go to the root of liability and require evidence to be tested at a full hearing. 14. The Tribunal is therefore satisfied that there exist triable issues which cannot be resolved at this interlocutory stage. 15. Accordingly, the application lacks merit. **FINAL ORDERS** 1. The Notice of Motion dated 14th may 2025 is hereby dismissed. 2. Cost of the application are awarded to the Respondent. 3. The matter shall proceed to full hearing. 4. Mention date for pretrial date on **24/6/2026.** It is so ordered. Ruling dated and delivered virtually at **Nairobi** this **14t**h day of **May, 2026.** **Hon. J. Mwatsama Ag. Chairperson Signed 14/5/2026** **Hon. Beatrice Sawe Member Signed 14/5/2026** **Hon. Fridah Lotuiya Member Signed 14/5/2026** **Hon. Michael Chesikaw Member Signed 14/5/2026** **Hon. P. Aol Member Signed 14/5/2026** Court Assistant – Mutai Mr. Oningo Advocate for the Claimant Muranja Advocate holding brief for Mrs. Odoyo Advocate for the Respondent. **Hon. J. Mwatsama Ag. Chairperson Signed 14/5/2026**