https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/239

Kitui Teachers D. T Sacco v Kimanzi & 2 others (Sued as Officials of Wikwatyo Self Help Group) (Tribunal Case E741 of 2023) [2026] KECOPT 239 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KECOPT 239 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E741 of 2023 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 14, 2026 Between Kitui Teachers D. T Sacco Applicant and Daniel Kimanzi 1st Respondent Mbula Kiema 2nd Respondent Joshua M Mwangangi 3rd Respondent Sued as Officials of Wikwatyo Self Help Group Ruling 1.Before this Tribunal is the Respondents’ Notice of Motion Application dated 16/03/2026 brought pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Order 10 Rule 11, Order 19 Rule 2 and Order 22 of the Civil Procedure Rules, and filed under certificate of urgency seeking orders inter alia:i.Spent.ii.Spent.iii.That the Interlocutory Judgment entered herein be set aside and the Respondents be granted leave to defend the claim.iv.That costs of the application be provided for. 2.The Application is premised on the grounds appearing on the face thereof and is supported by the affidavit of the 1st Respondent sworn on his own behalf and on behalf of the 2nd and 3rd Respondents pursuant to written authority filed before this Tribunal. 3.The Respondents subsequently filed a Supplementary Affidavit together with brief written submissions in support of the Application dated 22/4/2026. 4.The Respondents contend that they were never served with summons to enter appearance and were not aware of the proceedings leading to the Interlocutory Judgment entered herein. The 1st Respondent disputes the contents of the Affidavit of Service sworn by the court process server and denies meeting the process server or residing at the place stated in the Affidavit of Service. 5.The Claimant opposed the Application and relied on the Affidavit of Service sworn by the process server who deponed that he personally served the 1st Respondent, who acknowledged authority to receive documents on behalf of the co-Respondents but declined to sign the served documents. The law is settled that an Affidavit of Service constitutes prima facie evidence of proper service unless sufficiently disputed. In Shadrack Arap Baiywo v Bodi Bach (1987) eKLR, the court held that the return of service by a process server is presumed correct unless challenged through cross examination or other credible evidence. 6.The Tribunal has carefully considered the Application, Affidavits on record, and submissions by the parties. 7.The issue falling for determination is whether sufficient grounds have been established to warrant setting aside of the Interlocutory Judgment entered herein. 8.The law regarding setting aside of Interlocutory Judgment is settled. Under Order 10 Rule 11 of the Civil Procedure Rules, the court has unfettered discretion to set aside interlocutory judgment upon such terms as may be just. In Patel v E.A. Cargo Handling Services Ltd [1974] EA 75, the Court held that the main concern of the court is to do justice to the parties and avoid hardship resulting from inadvertence or excusable mistake. 9.The Tribunal has considered the Affidavit of Service on record together with the Respondents’ denial of service. The Tribunal notes that the process server deponed that the 1st Respondent acknowledged authority to receive documents on behalf of the co-Respondents. However, the written authority authorizing the 1st Respondent to plead, swear affidavits and sign documents on behalf of the co-Respondents was only filed subsequently and was not availed at the time the alleged service was effected. 10.The Tribunal further notes that the Respondents are officials of a self-help group and that the dispute herein involves substantial sums of money. The Tribunal is of the considered view that in the interests of justice, the Respondents ought to be accorded an opportunity to be heard on merit. 11.The Tribunal also takes into account that execution proceedings had progressed to the stage of issuance of a Notice to Show Cause requiring the Respondents to show cause why execution should not issue against them for the decretal amount of Kshs. 1,022,591.16 together with costs and interest. 12.Without making a definitive finding on the propriety or otherwise of service, the Tribunal is satisfied that this is a proper case for exercise of discretion in favor of setting aside the Interlocutory Judgment so as to afford the Respondents an opportunity to participate in the proceedings. 13.Accordingly, the Tribunal makes the following orders:a.The Notice of Motion dated 16/3/26 is merited and allowed.b.The Interlocutory Judgment entered herein is hereby set aside.c.The Respondents shall file and serve their statement of defense and all supporting documents within fourteen (14) days from the date hereof.d.The Claimant shall be at liberty to file any further response documents within fourteen (14) days upon service.e.The matter shall be mentioned on 10th September 2026 for purposes of confirming compliance and for further directions. Notice to issue.f.Costs of the application shall abide the outcome of the main claim.It is so ordered. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA AG. - CHAIRPERSON SIGNED 14/5/2026HON. BEATRICE SAWE - MEMBER SIGNED 14/5/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 14/5/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 14/5/2026HoN. P. AOL - MEMBER SIGNED 14/5/2026Court Assistant – MutaiNo appearance by partiesRuling delivered in their absence.HON. J. MWATSAMA AG. - CHAIRPERSON SIGNED 14/5/2026