[2024] KECPT 976 (KLR)

Mabuu v National Hospital Insurance Sacco Society Limited (Tribunal Case 729 (E775) of 2022) [2024] KECPT 976 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 976 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 729 (E775) of 2022

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

May 23, 2024

Between

Jane Wanjiku Mabuu

Claimant

and

National Hospital Insurance Sacco Society Limited

Respondent

(Coram: 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 Claimant’s Notice of Motion Application dated 30th of December 2022 supported by an affidavit sworn by the Claimant, Jane Wanjiku Mubuu and brought under order 2 rule 15(1)(b)(c) & (d), order 51 rule 1 of the Civil Procedure Rules, section 1A, 1B and section 3A of the Civil Procedure Act. The Application seeks the following orders:1. That the Defendant’s Defence filed herein be struck out with costs and judgment be entered in favour of the claimant as prayed for in the plaint.2. That such other orders and/or reliefs as this honourable court may deem fit and just to grant.

2. The Application is premised on the grounds on its face, and in her Supporting Affidavit, which are inter alia that: The Respondent filed a Statement of Defence comprised of mere denials and that the same does not raise any triable issues. That the Respondents had previously admitted owing the Claimant but has denied the same in its defence.

3. A brief background of this matter is that the Claimant claims she was a member of the Respondent, member number 01060. The claimant resigned from the Respondent vide a letter dated 28th May 2021, but is yet to receive her share refunds from the Respondent. The Claimant’s claim against the Respondent is for a refund of Ksh. 277,500/=.

4. The Respondent did not file a response to the Application. The matter was to be canvased by way of written submissions, and both parties filed their submissions.

5. In their submissions, the Claimants reiterate the contents in their Application, and urge this court to strike out the Respondent’s Defence and enter judgement in their favoir as per the Claim. The Claimant relies on various authorities on striking out Defences that do not raise any triable issues.

6. In their submissions, the Respondent submits that their letter dated 26th May 2022 is the main document the Claimants relying on yet the same was on “without prejudice”.the Respondents rely on various authorities that held that communication on without prejudice are inadmissible on public policy.

Analysis 7. This Tribunal has considered the application, and submission of the parties, together with the authorities relied upon by the parties. The question before this Tribunal is whether the Claimant is entitled to the reliefs sought in his application dated 3rd December 2022, to wit, whether the defence is just a mere denials, or whether it raises any triable issues. In the case of Postal Corporation of Kenya v 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 v 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”.The next question that the Tribunal asks itself is what is a triable issue? In the case of Saudi 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 theShedridan 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)

8. The Claimant invites this Tribunal to strike out the Respondent’s Statement of Defence dated 15th November 2022 for being a sham. The tribunal will now look at the subject Statement of Defence in order to determine the issues raised above. In the Statement of Defence, the Respondent denies all the Claimant’s claim and admits only the description of the parties and that there is no other matter pending between the parties. The only issue that the defence raises is that Claimant’s deposits, if the same are proven, have not accumulated to the amounts claimed.

9. We have considered the applicable law, and the provisions of the Statement of Defence, and we ask ourselves, does the Statement of Defence raises even one triable issue that should go for trial? A bona fide triable issue is any matter raised by the Defendant that would require further interrogation by the court during a full trial. This said, it does not need to be an issue that would succeed during trial, but an issue that would warrant further interrogation by the court. This Tribunal notes that the only issue brought about Respondent’s defence is on the amount of deposits (if any) that the Claimant has accumulated. The question before us is whether this is a triable issue. This is a claim for refunds of deposits. This Tribunal is inclined to belief that the “amount” of refunds is a material issue that needs further interrogation with the help of sufficient evidence adduced by the parties, and therefore finds this to be a triable issue.

10. The Claimant, in his application, refers to a letter it received from the Respondent dated 26th May 2022, in which it purports that the Respondent made an admission. This tribunal feels that such a letter would be better interrogated if the application before us was one for judgment on admission, and not in the present application for striking out the Statement of Defence. All that is needed for the present application, is to see whether the Defence raises any triable issue, which does not call for interrogation of evidence submitted by the parties. We will therefore not dwell on the letter.

11. In the upshot of the foregoing, the Application dated 30. 12. 2022 is hereby dismissed with no order as to costs.

12. Matter being one of refunds the same is to be canvassed by way of written submissions.Claimant to file and serve written submissions 14 days upon service.Respondent to file and serve written submissions 14 days after service.Mention to confirm compliance and for further directions on 7. 8.2024. Notice to issue.Orders to apply in CTC.NO. E776A/22,E776B/22 and E794/22.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. Hon. J. Mwatsama Deputy Chairperson Signed 23. 5.2024Hon. Beatrice Sawe Member Signed 23. 5.2024Hon. Fridah Lotuiya Member Signed 23. 5.2024Hon. Philip Gichuki Member Signed 23. 5.2024Hon. Michael Chesikaw Member Signed 23. 5.2024Hon. Paul Aol Member Signed 23. 5.2024Tribunal Clerk JonahKimondo Mubea advocate for the claimant.Kiptoon & Company advocate for Respondent- No appearance.Hon. J. Mwatsama Deputy Chairperson Signed 23. 5.2024