[2023] KECPT 1097 (KLR)
The tribunal found that although the ex-parte judgment entered on 16th February 2023 was regular due to evidence of proper service, the respondent's annexed statement of defence raised triable issues that warranted consideration. The tribunal emphasized the importance of not condemning a party unheard and the need...
Source-derived case information.
- Citation
- [2023] KECPT 1097 (KLR)
- Parties
- Applicant: William Karanja Maina; Respondent: Marumi Farmers Cooperative Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 840 (E924) of 2022
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application to set aside ex-parte judgment allowed; judgment and consequential orders vacated; respondent granted leave to file defence.
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Ex Parte Judgment, Setting Aside Judgment, Cooperative Societies Disputes, Default Judgment, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Karanja Maina
Applicant
Marumi Farmers Cooperative Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the tribunal should set aside its ruling of 16th February 2023 and the resultant decree.
- 2 Whether the respondent should be allowed to file a defence out of time.
Ratio Decidendi
The tribunal found that although the ex-parte judgment entered on 16th February 2023 was regular due to evidence of proper service, the respondent's annexed statement of defence raised triable issues that warranted consideration. The tribunal emphasized the importance of not condemning a party unheard and the need to uphold the principles of natural justice. Consequently, the tribunal exercised its discretion to set aside the ex-parte judgment and all consequential orders, allowing the respondent to file its defence out of time so that the dispute could be determined on its merits.
Court Disposition
Application to set aside ex-parte judgment allowed; judgment and consequential orders vacated; respondent granted leave to file defence.
Orders
- The notice of motion application dated 14th April, 2023 is allowed.
- The judgment entered on 16th February 2023, and other consequential orders and decrees are vacated.
Full Case Text
Judgment text and source record
22 paragraphs
Maina v Marumi Farmers Cooperative Society Limited (Tribunal Case 840 (E924) of 2022) [2023] KECPT 1097 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KECPT 1097 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 840 (E924) of 2022
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
December 14, 2023
Between
William Karanja Maina
Claimant
and
Marumi farmers Cooperative Society Limited
Respondent
Ruling
1. This suit began with the filing of a Statement of Claim on 25th October, 2022 where the Claimant, a member of the Respondent’s Cooperative Society alleged that in the year 2019-2020, he delivered coffee products to the Respondent for processing fetched a sum of Kshs. 330,000/= which he was never paid.
2. That despite numerous requests and demand to be paid, he has never been paid, thus necessitating this suit.The Claimant later requested this Tribunal for judgment in default of filing a Defence and/or entering appearance when the Respondents failed to file a Defence or enter appearance despite being served with Summons to enter appearance.
3. On 16th February, 2023, this Tribunal entered judgment in default of filing a Defence in favour – of the Claimant with a decree being ordered for the sum of Kshs. 371,000/=. Costs were awarded at the sum of Kshs. 41,320/=.The Claimant later made an Application for execution of the Decree, which this Tribunal approved and upon moving for attachments, the Respondent filed a Notice of Motion under rule 10 and rule 11 of the Civil Procedure Rules seeking for the judgment of this Tribunal of 16th February, 2023 to be set aside and all other Consequential Orders relating to that judgment, and also that he be granted leave to file his Defence out of time.
4. This Tribunal issued orders which allowed the parties to serve each other with the necessary pleadings and directed the parties to file written submissions in the end to enable the court rule on the Application.The Claimant has not complied with this Tribunal orders and/or opted not to file anything despite being served through his advocate.
Issues For Determinationi.Whether this tribunal should set aside its ruling of 16th February 2023, and the resultant Decree and allow the annexed Defence that has been filed out of time to be admitted.
Issue One Whether this Tribunal should set aside its ruling of 16th February 2023, and the resultant decree and allow the annexed Defence that has been filed out of time to be admitted.The decision of whether or not to set aside an ex-parte judgment is discretionary, with the power of discretion given to courts to exercise with the aim of avoiding injustice or hardship as a result of accident, inadurtence or excusable mistake or error. 5. In this particular case, it is not in doubt that the judgment of this Tribunal of 16th February 2023, was a regular judgment as there is evidence to confirm service. However, this Tribunal has also considered circumstances and facts both before and subsequent to the judgment it issued and even the annexed Statement of Defence which in our opinion raises triable issues, especially if considered with other documents filed by the Respondent as evidence.They raise issues which need canvassing before this Tribunal can make a decision. As such, it would not be in the interest of natural justice to condemn the Respondent unheard.
Final Ordersi.The notice of motion application dated 14th April, 2023 is allowed.ii.The judgment entered on 16th February 2023, and other consequential orders and orders and decrees are vacated.iii.Respondent to file and serve Statement of Defence, Witness Statement and Documents 21 days from today.iv.Mention for Pre-trial direction on 15. 3.2024. Notice to issue.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 14. 12. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 14. 12. 2023HON. BEATRICE SAWE - MEMBER SIGNED 14. 12. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 14. 12. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 14. 12. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 14. 12. 2023HON. PAUL AOL - MEMBER SIGNED 14. 12. 2023Tribunal Clerk JonahC.M. Njoroge for the RespondentKirubi Mwangi Ben for Claimant- No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 14. 12. 2023