[2021] KECPT 287 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.58 OF 2021

MARK NYAKERI BOSIRE......................................................................CLAIMANT

VERSUS

HARAMBEE SAVINGS AND CREDIT

CO-OPERATIVE SOCIETY LIMITED..........................................RESPONDENT

RULING

1. The Application for determination is dated 12. 05. 2021 and brought under Rules 6, 11, 17 &18 of Co-operative Tribunal(Practice and Procedure )Rules 2009 and all other enabling provisions of the law.

The Application seeks for Orders:-

a.Spent

b.That this Honourable Tribunal be pleased to stay any further proceedings arising from the Interlocutory Judgment entered on 30th April ,2021 pending the hearing and determination of this application inter-parties;

c.That the Interlocutory judgment entered by this Honourable Tribunal on 30th April , 2021 be set aside together .with any consequential orders thereto and this matter do proceed to trial on merit;

d.That the Respondent’s Statement of Defence and List of Documents dated 10th May 2021 be admitted as duly filed and served upon payment of the requisite court fees and do form part of this Honourable Tribunal’s record; and

e. That the costs of this Application be provided for.

2. The same is premised on the ground on the face of the Application and Affidavit in support Sandra Kavagi sworn on 12/5/2021 to which she stated she is an advocate of the High Court under the firm of Oraro & Co. Advocates.

They received instructions to represent the Respondent in the claim and filed a Memorandum of Appearance on the 3rd March 2021. On 16/3/2021 the Respondent sent them Supporting documents to enable them prepare and file a statement of Defence and List of Documents on their behalf .

However due to Covid 19 pandemic that has changed the work dynamic she was unable to prepare the Defence and file it in good time as she was alternating from work and home .

3. The staff in the office were also working on a rotational basis that it was a challenge co-coordinating the filing of the Statement of Defence.

On the 10/5/2021 when she was ready to file the documents the litigation clerk one George Onyango upon submitting the documents for assessment he received an email notification stating that Interlocutory Judgment had been entered against the Respondent on the 30/4/2021.

That failure to file the Statement of Defence and List of Document in time was due to extenuating circumstances and no fault of the Respondent.

The Application has been made without undue delay and claimant had failed to notify them of the Interlocutory Judgment .

The Respondent has a plausible Defence and it in the best interest of justice that it be allowed to ventilate its issues.

4. The Claimant/Respondent filed a Replying Affidavit sworn on 04. 05. 2021 opposing the Application.

He states once a Memorandum of Appearance has been filed the Respondent is under an obligation to file its defence within 14 days as per Order 7 (Rule 1) Civil Procedure Rule , 2010.

The reasons advanced for failure to file the defence is a neither here nor there. That despite the Covid 19 pandemic disruptions Court have been operating online.

That the Co-operative Tribunal registry does not accept hard copies. It would have been impossible for the Clerk George Onyangoto visit the Cooperative Tribunal with a view of filing hard copies of the defence. The ex-parte Judgment was entered against the Respondent on 30. 04. 2021 and Order extracted on 12. 05. 2021 and Respondent was notified of the Judgment on the same day through the email.

5. That setting aside of a regular Judgment involves the court discretion upon sufficient grounds which have not been produced. That in the event the application is allowed he is entitled to throw away cost of Kshs. 30,000/-

Further the defence does not raise any triable issues to warrant setting aside of the ex-parte judgment. The Respondent has not disputed the statement from Respondent Company which he is entitled to payment in the sum of Kshs. 161,965. 14/= less the amount paid of Kshs. 53,500/=.

6. Parties were to file written submissions as in a bid to dispose off the Application Claimant filed their written submissions dated 24. 05. 2021 on 16. 6.2021 and Respondent /Applicant filed their submission dated 23. 08. 2021 on even date.

We note with concern the Respondent delayed in filing their written submission despite clear directives being given and yet this is their Application.

On 06. 07. 2021 when the matter came up for mention they were not present and the court ordered they file their written submissions within 7 days. The Respondent/ Applicant filed their submission on 23. 08. 2021 one and half month after the orders were granted.

7. Analysis

Having considered the Applicant’s case and Respondent response and submissions the issues are:

Issue One

Whether the ex-parte Judgment on 30. 04. 2021 should be set aside

Issue Two

Costs

Issue One

Whether the ex-parte Judgment on 30. 04. 2021 should be set aside

Order 6 Rule 1 Civil Procedure Rules , 2010 provides:

“ Where a defendant has been served with summons to appear, he shall unless some order be made by the court , file his appearance within the time prescribed in the summons.”

The Respondent had 14days to enter appearance as indicated on the Summons to Enter Appearance. At the expiry of the prescribed 14 days the Respondent had not entered Appearance and Claimant procedurally requested for judgment on 30. 04. 2021 as provided under Order 10 Rule 4 Civil Procedure Rules 2010.

8. The law of setting aside ex-parte Judgment has been set hit in:

Patel v EA Cargo Handling Services Ltd [1974] EA 75 at page 76, Sir William Duffus P held:

“ The main concern of the court is to do justice to the parties, and the court will not impose conditions on itself to fetter the wide discretion given it by the rules. I agree that where it is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a defence on the merits. In this respect defence on the merits does not mean, in my view, a defence that must succeed, it means as Sheridan J put it "a triable issue" that is an issue which raises a prima facie defence and which should go to trial for adjudication.”

The Sequence of how the events that led to citing of default judgment confirm that a regular default judgment was entered because this time period had lapsed and Respondent had not filed a statement of Defence.

To set aside a regular judgment the court has jurisdiction to consider such application on the grounds as set out in

Prime Bank Ltd –Vs- Paul otieno Nyamodi (2014)eKLR.

“ Ordinarily the court will not set aside or vary interlocutory judgment because it would essentially be setting back the plaintiff’s progress in prosecuting its case causing it to suffer prejudice. The court must be satisfied that the Defendant offered a verty plausible explanation as to why he failed to file his Memorandum of appearance and Defence within the prescribed provided under Civil Procedure Rules , 2010 before such judgment can be set aside and or varied.”

9. Having considered the above we have inclined to allow the Application for the sole reason having looked at the annexed Defence the same seems to raise triable issues which can only be canvassed at trial.

However, the fact that the Respondent is being granted an opportunity does not mean they are to be set free noting they are inconveniencing the Claimant who had progressed substantially with his case.

Issue Two

Costs

Costs follow the event the Application if allowed should be with costs to the Claimant.

Upshot

1. The Application dated 12. 05. 2021 is allowed in terms of prayer 3 and 4 .

2. The Respondent Statement of Defence and List of Documents be filed with 7 days from date of this Ruling.

3. Throw Away costs of Kshs. 10,000 payable within 30 days.

4. Mention for Pre Trial Direction on 10. 11. 2021

RULING SIGNED, DATED AND DELIVERED VIRTUALLY 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

Mokaya Advocate for Claimant/Respondent : Present

Rosemary Advocate for Respondent/Applicant : Present

Hon. B. Kimemia Chairperson Signed 2. 9.2021