[2023] KECPT 737 (KLR)

Maina & 9 others v Kafahamu (Tribunal Case E683 (414) of 2022) [2023] KECPT 737 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 737 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E683 (414) of 2022

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

August 31, 2023

Between

Mark Adams Maina

1st Claimant

Evelyn Njoki Nduri

2nd Claimant

Carmichael Omondi Nduri

3rd Claimant

Beatrice Vuhya Omwada

4th Claimant

Irene Njeri Muriithi

5th Claimant

Victoria Akoth Ochwai

6th Claimant

Peter Kariuki Githatu

7th Claimant

Joseph Wagura Nderitu

8th Claimant

Jane Aoko Ohuma

9th Claimant

Dickson Okello Mbogo

10th Claimant

and

Kai Erasmus Kafahamu

Respondent

Ruling

1. This ruling dispenses with the Claimant’s Notice of Motion Application dated 6th september 2022 supported by an affidavit sworn by the claimants, Mark Adams Maina on behalf of all the claimants and brought under Order 51 rule 14 of the Civil Procedure Rules and all enabling provisions of the law. The Application seeks the following orders:1. That the Honourable Court be pleased to strike out the Respondent’s statement of Defence dated 22/8/2022 for being bad in law and enter judgement in favour of the applicants as prayed in the Statement of Claim dated 18/7/2022. 2.That the Claimants/Applicant be awarded costs for both the Application and the suit.

2. The Application is premised on the grounds on its face which are inter alia that: The Respondent was served with summons to enter appearance and filed Statement of Defence stating mere denials. It’s the Claimant’s position that the Respondent makes a blanket denial, and even denies the jurisdiction of this Honourable Tribunal.

3. In response, the Respondent filed a Replying Affidavit sworn by himself. In his response, the Respondent claims that His Statement of Defence raises triable issues and that it would be against natural justice if he is condemned unheard. He further contends that the Respondent has delved into the merits of the case.

4. Both parties filed Written Submissions on the matter. In their submissions, Claimants reiterate the contents of their application. The Claimants seek to address three questions, whether the Respondent’s Statement of Defence offends Order 2 Rule 15 of the Civil Procedure Code, whether the Respondent’s Statement of Defence raises any triable issues, and whether the Application is merited and should be allowed. The Claimant relied on various cases and provisions of the law. The Respondent in his submission also relied on various case laws on why their Defence raises triable issues.

5. The question the Tribunal should ask itself is 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 & 2others [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 the Shedridan 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)

6. The Claimant invites this Tribunal to strike out the Respondent’s Statement of Defence dated 22nd August 2022 for being a total sham and bad in law. The Tribunal will now look at the subject Statement of Defence in order to determine the issues raised. In the Statement of Defence, the Respondent denies being a member of Kimisitu Sacco, denies taking a loan, and denies being guaranteed by the claimants for the loan. The Respondent also denies getting reminders/notices about the loan, and or about the claimant’s deposits being deducted to cover the loans. In the alternative to these denials, the Respondent in paragraph 7 & 8 avers that the default in payment of the loan was not willful but was a result of Covid 19 pandemic, and that he has always informed the Claimants of his predicament.

7. 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 Claimants claim that the Claimant and Respondent were members of Kimisitu Sacco, which is not a party to this suit. The Respondent denies being a member of the Kimisitu Sacco, and indeed the Respondent denies the jurisdiction of this court, which will be true if both the Claimants and Respondents are not members of the Sacco. Membership in the Sacco, will be the basis on which this claim will be allowed to proceed or not vide Section 76 1(a) of the Co-operative Societies Act, which limits the jurisdiction of this Tribunal on disputes between natural persons to among members, past members and persons claiming through members, past members and deceased members. This tribunal finds this an issue that warrants further interrogation.

8. In the upshot of the foregoing, the Application is hereby dismissed with costs in the cause.

9. Mention for Pre-trial directions on 19. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. .....................HON. BEATRICE KIMEMIACHAIRPERSON.....................HON. BEATRICE SAWEMEMBER.....................HON. FRIDAH LOTUIYAMEMBER.....................HON. PHILIP GICHUKIMEMBER.....................HON. MICHAEL CHESIKAWMEMBER.....................HON. PAUL AOLMEMBERTribunal Clerk JemimahOpiyo for Claimant/ApplicantNgarama holding brief for Ochiro for Respondent