[2023] KECPT 928 (KLR)

Karanja v Eastleigh Route Savings and Credit Society Limited (Tribunal Case E889 of 2022) [2023] KECPT 928 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 928 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E889 of 2022

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

August 31, 2023

Between

Stanley Mwangi Karanja

Claimant

and

Eastleigh Route Savings and Credit Society Limited

Respondent

Ruling

1. This ruling dispenses with the Claimants Notice of Motion Application dated 24th October 2022 supported by an affidavit sworn by the Claimant, Stanley Mwangi Karanja, and brought under Order 36 rule 2 of the Civil Procedure Rules. The Application seeks the following orders:a.That Summary Judgment be entered for the Claimant as prayed for in the Statement of Claim.

2. The Application is premised on the grounds on its face which are inter alia that: The sum being claimed in the Statement of Claim is a liquidated sum, and the Claimant is no longer a member of the Claimant. The Claimant’s two vehicles are also no longer part of the Respondent’s Cooperative Society. The Applicant also contends that there is no reasonable Defence to the suit.

3. The thrust of the Application is that the Applicant/Claimant was a member of the Respondent number 171 from October 2012 to April 2022 when the Applicant withdrew from the membership and requested to withdraw his deposits from the Respondent.

4. In Response, the Respondent filed a Replying Affidavit sworn by its Chairperson, One Patrick Kinyua. In their Response, the Respondent agree that the Claimant was its member and had been remitting his contributions and loans and that he stopped recently. The Respondents also contend that the Respondent Eastleigh Route Sacco Limited is a different entity from Circular Classic Company Limited.

5. Both parties filed Written Submissions on the matter. The Claimant/Applicants reiterate the prayers in their Application. The Applicant highlights three issues of consideration in their submissions:a.Whether the Applicant has satisfied the threshold of Summary Judgment,b.Whether the Applicant be granted leave to defend the suit and the costs.On both the issues the Applicants submit the facts contained in their Statement of Claim, and further rely on Order 36 of the Civil Procedure Rules 2010. Rule 1 of the said Order provides that: -“1. (1)In all suits where a plaintiff seeks judgment for-(a)a liquidated demand with or without interest; or(b)the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a Defence the Plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.”The Applicants submit that their Application falls under the ambit of the above section of the law because their claim is for liquidated damages, and the Respondent has not filed a Defence or a Response to the claim. And that there is no issue left for the Tribunal to set aside.

6. In their submissions, the Respondents highlight 3 issues of determination:a.Whether the Applicant should be granted Summary Judgment,b.Whether the Respondent should be allowed to defend the suit,c.finally, who should bear the costs of the Application.The Respondents reiterate the issues in their Replying Affidavit, and submit that they have a Defence that raises bonafide issues. They submit that the Applicant made his Withdrawal Notice to another company that is not the Respondent. They also submit that the Applicant’s claim is not for a liquidated sum as he has loans, and has guaranteed other members loans, and therefore submits that they dispute the figure of Ksh. 1,793,800/= claimed by the Claimant. Among many authorities, the Respondent also relies on Article 50(1) of the Constitution, that provides for fair hearing.

7. The Tribunal has considered the submissions of both the Claimant and the Respondent. The Tribunal finds that it is not disputed that the Applicant was a member of the Respondent. It is also not in dispute that the Applicant had made contributions to the Respondent which contributions have stopped. What is in dispute is whether the Respondent has put in a Defence, and whether the Defence raises triable issues.

8. This Tribunal is guided by Order 36 Rule 1 of the Civil Procedure Rules on whether to grant the Summary Judgment. The Tribunal has perused the court file and has seen a Statement of Defence and the question that this Tribunal asks itself is whether the Statement of Defence raises triable issues. In the case of Postal Corporation of Kenya vs. Inamdar & 2 Others [2004] 1 KLR 359 the Court said:-“……… We must now consider whether the principles of law that need to be satisfied before such a judgment is entered were indeed satisfied. The law is now well settled that if the defence filed by a defendant raises even one bona fide triable issue, then the defendant must be given leave to defend.Further, in the case of Continental Butchery Limited vs. Samson Musila Ndura, the court stated:“With a view to eliminate delay in the administration of justice which would keep litigants out of their just dues or enjoyment of their property, the court is empowered in an appropriate suit to enter judgment for the claim from the plaintiff under summary procedure provided by Order 35 subject to there being no triable issues which would entitle a defendant leave to defend.”We must now ask ourselves, what is a triable issue? In the case ofSaudi Arabian Airlines Corporation v Premium Petroleum Company Ltd [2014] eKLR the court held that:“…………. Thirdly, in case of a Defence, the court must be convinced upon looking at the Defence, that it is a sham; it raises no bona fide triable issue worth a trial by the court. And a triable issue need not be one which will succeed but one that passes the Shedridan J Test in Patel V E.a. Cargo Handling Services Ltd. [1974] E.A. 75 at p. 76 (Duffus P.) that “… a triable issue… is an issue which raises a prima facie Defence and which should go to trial for adjudication.” Therefore, on applying the test, a Defence which is a sham should be struck out straight away.” (emphasis ours)

9. The Tribunal notes that this is a claim for a refund of deposits by the Claimant against the Respondent. The Respondent brought this Application for summary judgment on the basis that there is no reasonable Defence to the suit. The Tribunal has looked at the Statement of Defence filed and notes that as much as the Respondent denies so many claims, it raises the issue that the Claimant never issued a withdrawal notice to the Respondent. In the reply and submissions of the Respondent, and indeed in the letter provided by the Claimant, there is dispute on whether the Claimant followed due procedure when exiting, to wit, the entity addressed by the Claimant when exiting. The Claimant has not shown that the two entities are one and the same entity. The withdrawal is relevant if a refund of deposits is to be considered. This tribunal finds this to be a critical issue that calls for interrogation during the trial. And accordingly, the Tribunal associates itself with Madan JA in Shah v Padamsho[1984] KLR when he said:“Summary judgment is a drastic remedy to grant, for inherent in it is a denial to the respondent of his right to defend the claim made against him…..”.

10. In the upshot of the foregoing, the Application herein fails with costs in the cause.Mention for Pre-trial directions on 18. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023