[2024] KECPT 1159 (KLR)

Kinyanjui v Ekeza Sacco Limited (Tribunal Case E175/257 of 2023) [2024] KECPT 1159 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1159 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E175/257 of 2023

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

July 25, 2024

Between

Joseph Mwangi Kinyanjui

Claimant

and

Ekeza Sacco Limited

Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.))

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 6th November 2023 supported by an Affidavit sworn by one Peter Kamau Gitau, the head of Respondent’s Credit control and brought under Sections 1A, 1B, 33A, 63 of the Civil Procedure Act and Article 159(2) of the Constitution. The Application seeks the following orders:1. That the Application be certified urgent and be heard in priority.2. That the court be pleased to allow the firm of Njuguna Ng’ang’a & Associates to come on record for the Respondent post judgment.3. That the court be pleased to stay the execution of the default judgment and all the consequential orders issued in this suit pending the hearing and determination of this Application.4. That the court be pleased to set aside its default judgment and all Consequential Orders delivered in this suit.5. That the court be pleased to grant leave to the Respondent to enter appearance in the suit and file his Defence therein.6. That the costs of this Application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: the Claimant has begun execution proceedings despite the Applicant not receiving any Notice of Mention, hearing, or judgment. The Applicant aver that it is desirous of defending the suit and that it has a triable Defence. The Respondent contends that it will suffer prejudice if it is condemned unheard.

3. The Claimant/Respondent filed a Replying Affidavit. In their response, the Claimant/Respondent aver that they did serve the Applicant with the summons to enter appearance, and that their legal officer acknowledged receipt by stamping on the same. They also contend that the Claimant surrendered his passbook and was issued with a withdrawal form which indicates that the Respondent’s officer obtained the passbook from the Respondent.

4. The Application was canvassed via written submissions and the Claimant/Respondent filed their submissions.

Issues For Determination 5. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the summary judgement delivered on 31st July 2023

Analysis 6. The Claimant/Respondent averred that it was a member of the Applicant, number 1439, and this is not disputed. The issue in this case is that the Applicant claims that it 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 v 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.

7. It is now upon the person alleging that service was not done to show that indeed such Affidavit of Service was defective. In the instant case, the Applicant claims that it was never served at all.

8. In their Response, the Respondent avers that it indeed served the Applicant. On perusing the file, there is indeed a return of service that has been duly stamped received on 11th May 2023. The Applicant does not dispute the stamping, and neither did it file a further affidavit nor written submissions.

9. This Tribunal is convinced that the Applicant was duly served, and hereby make the following orders;a.Notice of Motion Application dated 6th of November 2023 lacks merit and is hereby dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. Hon. B. Kimemia Chairperson Signed 25. 7.2024Hon. J. Mwatsama Deputy Chairperson Signed 25. 7.2024Hon. Beatrice Sawe Member Signed 25. 7.2024Hon. Fridah Lotuiya Member Signed 25. 7.2024Hon. Philip Gichuki Member Signed 25. 7.2024Hon. Michael Chesikaw Member Signed 25. 7.2024Hon. Paul Aol Member Signed 25. 7.2024Tribunal Clerk JonahNo appearance of the parties.Hon. B. Kimemia Chairperson Signed 25. 7.2024