[2025] KECPT 298 (KLR)

Kiruri v Limuru Traders Sacco Limited (Tribunal Case E887 of 2024) [2025] KECPT 298 (KLR) (29 May 2025) (Ruling)

Neutral citation: [2025] KECPT 298 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E887 of 2024

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

May 29, 2025

Between

Beth Wangari Kiruri

Claimant

and

Limuru Traders Sacco Limited

Respondent

Ruling

1. The Notice of Motion Application dated 6th February, 2025 is brought under Sections 1A, 1B, 3 &3A of the Civil Procedure Act, Order 10 Rule 11, Order 22 Rule 22 and Order 50 Rule 6 of the Civil Procedure Rules seeking among others:a.Spentb.That pending hearing and determination inter partes of the Application, an Order be issued restraining the Claimant by herself, agents, auctioneers, employees or proxies from executing for recovery against the Respondent the amount indicated in the warrant of sale of movable property dated 25th January, 2025, or any portion thereofc.That pending hearing and determination inter partes of the Application, the Honorable Court be pleased to stay the execution of the judgment, decree and warrants of attachment and sale of the movable property.d.That the Honorable Court be pleased to set aside its judgment/decree dated 16th January, 2025 against the Respondent and all sub sequential orders.e.That the Respondent be granted leave to defend the claim out of time.f.That the draft Defence attached be deemed as properly filed upon payment of the requisite fees.The Application was based on the grounds that:i.The Respondent has been served with warrants of attachment and there is a real risk that the Respondent's movable property will be auctioned off, causing irreparable loss for the Respondent.ii.The failure to enter appearance and file a Defence on time was due to an inadvertent omission.iii.The Respondent has an arguable Defence and it is fair and in the interest of justice that they be granted a chance to defend the claim.

2. This Tribunal on 7th February, 2025 gave directions for the Application to be served, and the Respondent to file and serve their response within 14 days.The Claimant/Respondent filed their Replying Affidavit dated 18th February, 2025 stating among others:i.That the Respondents through the supporting affidavits of Lucy Wanjiku Mwaniki and Mary Waweru expressly admitted that they were duly served with all the documents being: summons to enter appearance and all the pleadings filed in the matter.ii.That Lucy Wanjiku Mwaniki and Mary Waweru have no locus standi to swear legal documents on behalf or as representatives of the Respondent.iii.That the Application is misguided as the Respondent has expressly admitted that they were duly served with the pleadings in the matter and they willfully neglected not to participate in the proceedings.iv.That the Respondent has not approached equity with clean hands as they have not fully explained their indolence. As such, reinstatement being a discretionary order cannot be given to a party who tries to overreach.v.That the Respondent has expressly admitted that the Claimant savings will be refunded as was agreed by a special resolution by a special general meeting held in October 2019 and July 2022. vi.That it is more than two years since their last special general meeting with regards to refunds, and the Respondent is not acting in good faith and is intentionally attempting to delay the matter which is consequentially highly prejudicial to the Claimant.vii.That the Respondent has not shown sufficient cause why the Honorable Tribunal should set aside the judgment and decree and warrants of attachment and sale of movable property in the matter.

3. This Tribunal on 3rd March, 2025 gave orders for the matter to be canvassed further by way of written submissions, with the Respondent given leave to file a further affidavit in response to the Claimant’s Replying affidavit. The Respondent through Nancy Njeri Kamau filed a further affidavit stating among others:a.That they have authority to swear affidavits since the matters alluded to in the Application are within their knowledgeb.That in an Application to set aside a judgement, a court should consider the reasons why a Defence was not filed, and if the annexed Defence raises triable issuesc.That the resolution to refund members through a queuing system was as a result of the liquidity challenges the Sacco is facingd.That failure to enter appearance was not intentional and was as a result of human error that can happen to anyonee.That if the Application is not allowed, the Sacco will bear irreparable economic loss to the detriment of other members.

4. The Respondent/Applicant also filed their written submissions dated 14th March, 2025 stating among others:i.That setting aside of an ex-parte judgement is discretionary and is exercised judiciously to ensure that a litigant does not suffer injustice or hardship as a result of among others an excusable mistake or errorii.That the failure to enter appearance and file a Defence was an honest mistakeiii.That the annexed Defence raises triable issues that should go for adjudicationiv.That their Defence should be allowed for judgement to be reached on merit.

5. The Claimant/Respondent on her end filed her written submissions dated 20th March, 2025 stating among others:1. That the Respondent has not satisfied the conditions for stay of execution as set under Order 22 Rule 22 of the Civil Procedure Rules2. That the Respondent has failed to present any tangible evidence to demonstrate that they will suffer substantial loss if execution proceeds3. That it is the Claimant who stands to suffer substantial loss as the claim arises from unpaid savings - savings she has saved over the years.4. That the Respondent has never provided a reasonable proposal or shown any willingness to settle the outstanding unpaid savings5. That the Respondent has not brought to court any evidence to prove that it is struggling to pay its members.6. That an inordinate amount of time has lapsed since the request for judgment was made, and the Respondent only moved to file the present Application after an unreasonable delay, which delay is not explained or justifiable.7. That allowing the Respondent’s Application will amount to a travesty of justice as the Respondent is guilty of latches, having failed to act within a reasonable time.8. That the Judgement was entered on 17th December, 2024 and decree was issued on 16th Jan., 2025, but the Application has been filed on 6th Feb., 2025 .9. That the respondent has not offered or furnished security for the due performance of the decree.10. That the draft Respondent’s Statement of Defence admits liability but does not give probable means of how the Respondent intends to settle the decretal sum.11. That the instant Application is an abuse of the court process and is calculated to cause undue delay and prejudice to the Claimant who is entitled to the fruits of its regular default judgment.

6. We have considered the Application, the Affidavits and written submissions filed, and the only question remaining for determination is as to whether the threshold for setting aside of the judgement has been met.Has the threshold for setting aside of the judgement of 17th Dec., 2024 been met?In as much as it is clear that the Respondent was served and as such the judgement entered on 17th Dec., 2024 is regular, we are still guided by the decision in Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193 which still mandates this Tribunal to consider all circumstances in the matter and apply its discretion judicially to serve the best interests of justice. In that matter, the court held that:“A judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter, the good sense of the matter, were certainly matters for the judge. It is an unconditional unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a Defence on the merits, namely a prima facie Defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to revoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure.”

7. In this particular case, we have considered the annexed statement of Defence and we are not persuaded that it raises triable issues as the Respondent has not expressly denied owing the Claimant - the Respondent is ready to refund, but based on a queue system depending on when the request for refund was made.In as much as we sympathize with the position the Respondents find themselves in - their liquidity challenges, they have not adduced sufficient reasons to warrant the setting aside of the judgement of 17th December, 2024.

Final OrdersThe Notice of Motion Application dated 6th February, 2025 is dismissed with costs.Default judgment entered on 17. 12. 2024 is upheld.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 5.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 5.2025HON. BEATRICE SAWE - MEMBER SIGNED 29. 5.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 5.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29. 5.2025HON. P. AOL - MEMBER SIGNED 29. 5.2025Tribunal Clerk MutaiMs. Mwikali advocate holding brief for Mr. Kivuva advocate for the Claimant/RespondentMs. Wairimu Mwaura advocate for the Respondent/applicant.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 5.2025