[2024] KECPT 220 (KLR)

Kamau v Mwangi & another (Tribunal Case 492 of 2021) [2024] KECPT 220 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 220 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 492 of 2021

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

March 7, 2024

Between

Francis Mbugua Kamau

Claimant

and

John Kamau Mwangi

1st Respondent

Kariua Muiriukia Cooperative Society Limited

2nd Respondent

Ruling

1. The issue for determination before the Tribunal is whether the ex-parte Interlocutory Judgement entered on 6th September, 2022 against the 1st and the 2nd Respondent be set aside and the 1st Respondent be granted leave to file his Defence/ Response out of time.

Background 2. The Claimant bought a plot from the 1st Respondent known as Plot No. 1459 Kariua Mwiriukia Co-operative Society Ltd vide a Sale Agreement dated 30th June, 2009 for a consideration of Kshs. 720,000/= which was to be paid in 2 installments of Kshs. 640,000/= and Kshs.80,000/=.

3. It was a condition in the Sale Agreement Clause 5 that the transfer in respect to the said plot shall be done upon payment of the whole purchase price. The Claimant state that he paid the final amount into the Respondent’s bank account at Barclays and Equity Bank, thereafter he took the possession of the plot.

4. The Claimant state that despite many promises to complete the transfer, the 1st Respondent has failed to honor his promises, thus necessitating this suit.

Ex-parte Judgement. 5. Upon filing the necessary documents in the Tribunal, when the service of those documents was done upon the 1st and 2nd Respondent and did not elicit any response from the Respondents, the Claimant made an Application dated 25/8/2022 and requested for judgement against John Kamau Mwangi and Kariua Mwiriukia Co-operative Society Ltd for the reason that they failed to enter appearance and file their Defence within the prescribed time despite being served on 1/7/2022.

6. On 6/9/2022, the Tribunal entered an ex-parte judgement on the basis of the above request and on strength of the Affidavit of Service Application dated 1/7/2022 which was sworn by Stephen Njonjo a court process server holder of Certificate No. 0174.

7. Vide a Notice of Motion dated 14/12/2022, the Respondent filed an Application seeking orders:a.That this Honorable Court be pleased to set aside the ex-parte Interlocutory Judgement entered on the 6th of September, 2022 pending the inter-parties hearing of the Application.b.That this Honorable Court be pleased to set aside the ex-parte Interlocutory Judgement dated 6/9/2022 pending the hearing and determination of the Application.c.That the Honorable Court to set aside the proceedings, the interlocutory judgement and subsequent orders issued by this Court for the matter to be heard and determined on merit.d.That the Honorable Court be pleased to grant the Respondent herein leave to file his Defence/ Response out of time and be granted the opportunity to be heard on merit.e.That costs of this Application be provided for.This Notice of Motion is anchored on the Provisions of Order 10 Rule 11, Order 22 Rule 22, Order 51 Rule 1 of the Civil Procedure Rules 2010.

8. In addition to the Notice of Motion, the 1st Respondent filed Written Submissions dated 30/10/2023 which raise issues that put the Interlocutory Judgement into focus.

9. Having read through the Claimant’s Statement of Claim and the Annexures and 1st Respondent’s Notice of Motion together with the Written Submissions, the Tribunal is of the view that perhaps the process server never served the 1st Respondent the Application due to his failure to explain more particulars about the identity of the people that he served.

The Law. 10. Order 10 Rule 11 of the Civil Procedure Rules [2010] provides that an ex-parte Interlocutory Judgement in default of appearance may be set aside. It reads as follows:“Where a Judgement has been entered under this order, the Court may set-aside or vary such Judgement and any consequential decree or order upon such terms are just.”

11. The Court of Appeal in the case of James Kanyiita Nderitu v Marios Philotas Ghikas and another [2016] eKLR set the threshold on the factors to be considered before a Court or Tribunal set aside an ex-parte interlocutory judgement. These among others include; Whether the intended Defence raises triable issues, the respective prejudice that each party is likely to suffer and whether on the whole, it is in the interest of justice to set aside the default judgement.

12. For the record, the Civil Procedure Rules gives two (2) incidents where an ex-parte interlocutory judgement may be tampered with, these are:a.Irregular Judgement – Where service of Summons to enter appearance was inadequate.b.Regular Judgement – Where service of Summons was effected but there is an arguable Defence and compelling reasons proffered as to why the same was not filed in time.

13. The Claimant filed a Replying Affidavit dated 8/6/2023 in response to the Respondent’s Notice of Motion and Written Submissions. Although the Claimant raised several objections to the Prayers sought by the Respondent, he has not demonstrated to the Tribunal the prejudice that he will suffer upon setting aside of the ex-parte Interlocutory Judgement.

14. In the interest of justice, we hold that the prayers sought in the Notice of Motion dated 14/12/2022 are capable of being granted. We therefore tamper with our own ex-parte judgement issued on 6/9/2022 and open a window for the Respondents to file their Defence.

Orders.a.It is our considered view that the Notice of Motion dated 14/12/2022 has merit and that we set aside the ex-parte interlocutory judgement entered on 6/9/2022 and the subsequent orders attached.b.That the 1st Respondent is granted leave to file his Defence out of time. In that regard, the Respondent is ordered to file his Defence within 14 days from the date of this ruling.c.Thrown away costs assessed at Kshs. 10,000/=.d.Mention for pre-trial direction on 17. 4.2024.

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 JemimahKing’ori advocate holding brief for Mwangi advocate for Claimant.No appearance for the RespondentHon. Beatrice Kimemia Chairperson Signed 7. 3.2024