[2021] KECPT 279 (KLR)
The tribunal found that the respondent's defence did not raise any valid or triable issue, as it amounted to mere denials and an admission of indebtedness by seeking to pay the claimed sum in instalments. The tribunal held that the admission was clear and unambiguous, satisfying the legal threshold for summary...
Source-derived case information.
- Citation
- [2021] KECPT 279 (KLR)
- Parties
- Applicant: Lucy Moraa Sure; Respondent: Orient Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 397 of 2020
- Procedural Posture
- Summary Judgment Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
- Outcome
- application allowed; summary judgment entered for applicant
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Admissions, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Moraa Sure
Applicant
Orient Sacco Society Limited
Respondent
Procedural Posture
Summary Judgment Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
Legal Issues
- 1 Whether the respondent's defence raises any triable issue.
- 2 Whether the applicant is entitled to summary judgment based on admissions by the respondent.
- 3 Whether the memorandum of response should be struck out for being a mere denial.
Ratio Decidendi
The tribunal found that the respondent's defence did not raise any valid or triable issue, as it amounted to mere denials and an admission of indebtedness by seeking to pay the claimed sum in instalments. The tribunal held that the admission was clear and unambiguous, satisfying the legal threshold for summary judgment. The tribunal relied on established principles that summary judgment may be entered where there is a clear admission of liability and no triable issue is raised. The respondent's arguments regarding the circumstances of the debt and its financial position did not constitute a valid defence to the claim. Accordingly, the tribunal allowed the application for summary judgment...
Court Disposition
application allowed; summary judgment entered for applicant
Orders
- Summary judgment is entered against the respondent for Kshs.456,000 plus costs and interest.
- The respondent's memorandum of response is struck out to the extent that it does not raise any triable issue.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO.397 OF 2020
LUCY MORAA SURE.......................................CLAIMANT
VERSUS
ORIENT SACCO SOCIETY LIMITED...RESPONDENT
RULING
1. The Application Notice of Motion dated 2. 3.2021 is for determination and has been brought under Order Rule 15 (1) b ( c)and d and Section 1A, 1B, and 3A of the Civil Procedure Actand all enabling provisions of the Law.
The Application seeks for Orders:
a. The Memorandum of Response dated 6th November, 2020 be struck out.
b. In the alternative, Summary Judgment be entered against the Defendant for a sum of Kshs.456,000/=
c. That costs of the Application and the suit be provided for.
2. The Application is premised on the grounds on the face of the Application and Affidavit in support of Lucy Moraa Sure where she stated.
The Memorandum of Response contains mere denials and the same ought to be strike out.
The Respondent has not brought any documents and or evidence to challenge or support its allegations in admission to challenge the Statement of Claim.
That the Admission is only meant to delay the fair trial of the action and is an abuse of the court process and prays for the Respondent Defence to be struck out and judgment be entered in favour of the Claimant in the interest of justice.
3. The Respondent filed a Replying Affidavit in opposition to the Application and stated the Memorandum of Response had raised triable issues which were worth going to trial.
There were facts and records that ought to be looked into to wit the Respondent’s former Management Committee was removed from office in December 2016 had declared fictious dividends and the members were paid including the Claimant which amount was later recommended by an audit report that the same was to be recovered from all members.
The Respondent had filed an Affidavit of means acknowledging that it owes refundable deposits to its members and it had registered to be allowed to repay via installments to enable them remain a float.
That in any case for summary judgment to be entered on admission the same must be clear and unequivocal which is not the case.
If judgment on admission is entered against the Respondent the Respondent will effectively be driven from the seat of justice without trial.
4. That the right to be heard is a fundamental right that must not be denied to enable the Respondent ventilate its position and to be accorded the chance to defend the suit. The grant of Orders sought in the Application would greatly prejudice the Respondent for the fact the Applicant is guilty of inequitable delay as deponed and the Respondent is willing to refund the shares in instalments as per its Affidavit of means dated 17. 12. 2020 and thus not entitled to the exercise of this Honourable Tribunal’s discretion in their favour.
The parties filed written submissions in a bid to dispense off with the Application the Respondent filed their submissions dated 21. 5.2021 on 24. 5.2021 and the Claimant/Applicant filed their submissions dated 28. 4.2021 filed on 29. 4.2021.
Analysis
5. Order 13 Rule 2 Civil procedure Rule 2010 clearly states :
“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just. “
The Respondent stated the Respondent contesting the amount is an issue to be determined.
The issues to be determined are thus:
Issue one:
Whether the Defence raise triable issue?
6. The principle that guide the court in determining whether to struck out a pleading were set out in the case of DT Dobie & company (Kenya) Limited – vs- Joseph Mbaria Muchina and Another CA 37 of 1978 [1980]eKLR.
Madan JA stated:
“...the court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable case of action on being otherwise an abuse of the process of the court.....”
The case by Respondent in their submissionsTranscend Media Group Limited - vs- IEBC[2015] eKLR court held:
“... striking out of a case and in the process, deprive a party of the opportunity to present their case has been held over and over the years to be a draconian measure which ought to be eyed only as a last resort and even the only in the clearest of case.”
To this end we are satisfied that indeed the Applicant has a valid claim.
The Defence does not raise valid issues or any triable issue as it were.
It denies owing the Claimant Kshs.456,000/= and court the same time stated amount owed to Claimant was affected due to recovery of unearthed dividends paid to its members and seeks to make payment via instalments.
In case of National Bank of Kenya - vs- Daniel Opande Asnani[2002] eKLR
“ The law is now settled and that is the admission upon which a court of law will act to strike out a Defence and enter judgment must be clear and unambiguous.
The same admission need not be in the pleadings only. It can be discerned in any other way….I am satisfied that the debt herein had been admitted ….I do allow the Application “
With the above we are also satisfied that the admission by the mere fact the Respondents are seeking to pay via installments.
7. The upshot of the above is that the Application dated 2. 3.2021 is found to be with merit in terms of prayer 2- summary judgment be entered against the Respondent for a sum of Kshs.456,000/=plus costs and interest in the suit.
Application is allowed in terms of prayer b with costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021
Hon. B. Kimemia Chairperson Signed 2. 9.2021
Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021
Mr. Gitonga Kamiti Member Signed 2. 9.2021
Mr. B. Akusala Member Signed 2. 9.2021
Tribunal Clerk R. Leweri
Chacha holding for Makori for Claimant/Applicant Present
Hon. B. Kimemia Chairperson Signed 2. 9.2021