[2023] KECPT 750 (KLR)

Karanja & 10 others v Temba (Tribunal Case 85/E176 of 2022) [2023] KECPT 750 (KLR) (3 August 2023) (Ruling)

Neutral citation: [2023] KECPT 750 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 85/E176 of 2022

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

August 3, 2023

Between

James Wanjiku Karanja

1st Claimant

Johnson Murithi Ndwiga

2nd Claimant

Olivia Awuor Okaka

3rd Claimant

Kennedy Okeyo Ojwang

4th Claimant

Kizito Wamunyu Kiguta

5th Claimant

Jackson Ouma Owuor

6th Claimant

Chepkemoi Monica

7th Claimant

Philip Wesonga Awuor

8th Claimant

Janet Mwasawa

9th Claimant

Penninah Mugure Kihika

10th Claimant

Sadique Enterprises Auctioneer

11th Claimant

and

Khamala Kizito Temba

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 3rd November 2022 supported by an affidavit sworn by the respondent, Khamala Kizito Temba, and brought under Sections 3A of the Civil Procedure Act, Order 10 Rule 11 and Order 9 Rule 9(a) of the Civil Procedure Rules, 2010, Rule 6 and 17 of the Co-operative Tribunal (Practice & Procedure) Rules, 2009 and all other enabling provisions. The Application seeks the following orders:1. That this Application be certified urgent and service thereof be dispensed with in the first instance.

2. That this Honourable Tribunal be pleased to issue Stay of Execution Orders against the Warrants of Attachments dated the 21st October, 2022 and the Proclamation Notice dated 2nd November, 2022, pending the hearing and determination of this Application interparties.

3. That this Honourable Tribunal be pleased to issue temporary orders of injunction restraining the Claimants/Respondents, their agents, servants, employees or any person acting on their behalf from attaching the respondent/applicant’s proclaimed movable property pending the hearing and determination of this Application interparties.

4. That this Honourable Tribunal be pleased to issue temporary orders of injunction restraining the Claimants/Respondents, their agents, servants, employees or any person acting on their behalf from attaching the Respondent/Applicant’s proclaimed movable property pending the hearing and determination of the main suit.

5. That this Honourable Tribunal be pleased to set aside the Interlocutory judgment in default of appearance delivered by this Honourable Tribunal on 29th July, 2022 and the subsequent Decree thereof.

6. That this Honourable Tribunal be pleased to summon the court process server, one Mr. Daudi Kipkosgei Suter for cross examination regarding the contents of his Affidavit of Service dated 14th June, 2022.

7. That this Honourable Tribunal be pleased to summon the Auctioneer, one Ms. Pamela Joy Ouko for cross examination regarding the contents of the Notice of Attachment dated 2nd November, 2022.

8. That this Honourable Tribunal be pleased to grant leave to the Respondent/Applicant to file a Statement of Defence in this claim as per the draft attached herein.

9. That the costs of this Application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: an interlocutory judgment was delivered on 29th July, 2022 against the Respondent/Applicant. However, the Applicant contends that he neither received the Summons to Enter an Appearance nor the Auctioneer’s Notice. Thus, he contends that the Affidavit of Service on record as well as the Notice of Attachment by the Auctioneer is fatally defective. In his Supporting Affidavit, the Respondent depones that on the purported day of service, 22nd March, 2022, he was arriving from Jordan at 3. 00pm and did not report to work regardless of the Affidavit of Service claiming that he was served at Ulinzi House at 8. 00am.

3. The Application was to be canvassed via written submissions and both parties filed their submissions.

Issues For Determination 4. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the Interlocutory Judgment in default of appearance delivered on 29th July 2022.

Analysis 5. The Applicant in this case claims that He was not served with the Service to Enter Appearance, while there is an Affidavit of Service on record. The Affidavit of Service filed by a Court Process Server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo – Vs – Bodi Bach [1987] eKLR, where the Court of Appeal held as follows:-“There is a presumption of services as stated in the Process Server’s Report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”.

6. It is now upon the person alleging that service was defective to show that indeed such service was defective. In the instant case, the applicant claims that on the alleged day of service he was arriving in the country, and was not in office as alleged by the process server. The Respondent applicant submitted a page of what looks like a stamped passport that shows movement on the material date. The Respondent also deponed, in his supporting affidavit, of the detailed procedures that one goes through at Ulinzi house when it comes to handling the issue of summons. All these are not in the affidavit of service filed by the process server, and which affidavit was not signed as received by the Respondent. This court is inclined to give the Respondent a benefit of doubt that service was not properly done.

7. The upshot of the foregoing is that we allow the Respondent’s Notice of Motion application dated 3rd November 2022 with the following orders;a.The Respondent to pay thrown away costs of Ksh. 15,000/- to the Claimants within 30 days of this ruling.b.The Respondent to file his Statement of Defence within 14 days of this Ruling, and thereafter comply.c.Parties to file written statements and documents.d.Mention for Pre-trial directions on 18. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER