[2025] KECPT 199 (KLR)

Maithya v Riakanau Coop. Sacco Limited & 3 others (Tribunal Case 187 of 2021) [2025] KECPT 199 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 199 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 187 of 2021

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

March 27, 2025

Between

Alexander Stephen Maithya

Claimant

and

Riakanau Coop. Sacco Limited & 3 others & 3 others & 3 others

Respondent

Ruling

1. This Tribunal is called upon to make a determination on the prayers raised in a Notice of Mortion dated 09/08/2024 filed by the 1st to 4th Respondent/Applicant seeking orders for :a.Spentb.The firm of BM Musau & Company advocates LLP be allowed to come on record on behalf of the Applicants.c.The notice of appointment of advocates dated 10th July 2024 be deemed as properly on record.d.This Honourable Tribunal be pleased to grant an order of stay of execution of the judgment delivered on 30th November 2023 in this matter and the decree arising from it pending hearing and final determination of this applicatione.This Honourable court be pleased to set aside judgment entered on 30th November 2023 and decree arising from it and grant the applicants herein an opportunity to be heard and defend the claim on merit andf.The costs of this application be provided for.

2. The Respondents filed the instant Notice of Motion after a judgement was entered and delivered in favour of the Claimant/Respondent against them and a decree dated 26/02/2024 was extracted and issued

3. The Respondents/Applicants claim that they were not aware of the proceedings before the Tribunal and only came to know when they were served with decree and the application dated 20/06/2024

4. Counsel for the Claimant/Respondent confirmed that they received a response from the firm of B.M. Musau Advocates who stated that they represent the Respondents/Applicants

5. It was pointed out that the firm of B.M. Musau Advocates were not properly on records and when the tribunal checked in the system whether there was a notice of appointment it was discovered that there was noneSubsequently, the tribunal directed that Respondent to regularize their position within 3 days from 12/09/2024

Analysis 6. We have read and analysed the Respondents/Applicants statement and the set documents filed in the Tribunal and isolated three issues for determination;a.Whether the firm of B. M. Musau & Co. Advocates are properly on record for the Respondents/Applicants?b.Whether the Tribunal can set aside the judgement entered on 30/11/2023 and all its consequential orders?c.Who bears the costs of the application?

A. Whether the firm of B. M. Musau & Co. Advocates LLP are properly on record for the Respondents/Applicants? 7. This matter started way back in April 2021 when the claimant fixed a statement of claim and attached some bundle of documents which were served upon the Respondents/Applicants on 29/04/2021 by one Rebecca Mbele Ndeti a court process server

8. However, we note that the Respondentss/Applicants overlooked the suit and only up when the Claimant served them with a decree and an application dated 20/06/2024 for enforcement.

9. Noting that they have caught off-guard, the respondent appointed the law firm of B. M. Musau & co. Advocates LLP on 10/07/2024 and the same notice of appointment was duly filed in the Tribunal on 11/07/2024

10. Having acted as such, we find that there is nothing more that would stop the Respondent/Applicant’ advocate from being allowed and deemed as properly on record. For this reason, we find that prayer 2 and 3 in the Notice of Motion application is merited and is therefore allowed.

B. Whether the Tribunal can set aside the judgement entered on 30/11/2023 and its Consequential Order? 11. under paragraph 13 of the Respondents/Applicants grounds provided in the Notice of Motion application dated 09/08/2024 makes a claim that they were not aware of the proceedings before the Tribunal and only came to know about it when they were served with a decree and an application for enforcement. The above averment sounds more of casual than real considering that each of the respondent was served by the court process server was filed a return of Affidavit of Service in the Tribunal. What we notice in the suit is the Respondentss/Applicants may have had knowledge of the suit but opted to relax, wait and see the out come.

12. Clearly Order 7 Rule 1 of the Civil Procedure Rules Speaks and service of the summons and annextures by providing as follows;“Where a defendant has been served with a summons to appear he shall unless some other or further order be made by the court, file his defence within 14 days after he has entered an appearance in the suit and serve it on the plaintiff within 14 days from the date of filling the defence and file an affidavit of service”.

13. In the instant suit, the Respondents/Applicants did not enter appearance neither did they file a defence, Instead, they allowed the claimant to proceed through the formal proof uncontroverted up to the point where enforcement has eminent.

14. By the time, the Respondents/Applicants filed the instant Notice of Motion on 09/08/2024, the grace period for filing a defence was long gone.The only option within the Respondents/Applicants have been to file an application seeking leave to file a defence out of time which was not done.

15. However, we have perused through the Affidavit of Mr. Jeremy Kisilu Mwonga and the photocopy of the documents filed and reach a conclusion that the Respondents/Applicants have plausible reasons why they need to be heard.

16. The Tribunal has the discretion to set-aside the regular judgement that it entered on 31/08/2023 together with all the consequential orders with a view to hear Respondents/Applicants who was not heard earlier with the sole objective of doing justice to the parties.In the case of Philip Kiptoo chemwolo and Mumias sugar Company. vs Augustine Kubede (1982-1988)The court stated that, it has unlimited discretion to set aside as vary a judgement entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties.At the same time Rule 7 of the Cooperative Tribunal (Practice and Procedure) Rules 2009 provide that;“A judgements order award made ex-parte under this rule may of application be set aside on such terms as may be just”.Although the Respondents/Applicants did not file a formal Statement of Defence in order to enable the Tribunal to consider whether it contains triable issues or not, a plain reading of the Supporting Affidavit of Mr. Jeremy Kisilu Mwonga needs to be interrogated further by the respective parties.For the interest of justice and to allow each of the parties to state their case, the tribunal in exercise of its discretionary powers agree to set aside the judgement entered on 31/08/2023 together with all the consequential orders on condition that the Respondents/Applicants file a statement of defence and their supporting evidences within 14 days from the date of this rulingIn conclusion, we make the following orders;a.Prayer 1 – spentb.Application dated 9. 8.2024 is allowed as prayed.c.Costs in the caused.Respondent to file and serve documents 14 days from today.e.Mention for Pre-trial directions on 18. 9.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMs. Thuku advocate holding brief for Musau advocate for the Respondents/ApplicantsMr. Wachira advocate holding brief for Mr. Kayi advocate for Claimant/RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025