https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/312

**REPUBLIC OF KENYA** **IN THE COOPERATIVE TRIBUNAL AT NAIROBI** **CTC NO. E989 OF 2024** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **MHASIBU SACCO SOCIETY LTD……………………………CLAIMANT** **VERSUS** **HARUN EUGEAN ODUOR OWADE………………………RESPONDENT** **RULING** 1. In a Notice of Motion dated 24th July 2025, the Respondent/applicant invoked the provisions of order 22 Rules 51 and 52.Order 51 Rule 1 of the civil procedure Rules 2010, Section 1A,1B & 3A of the [*Civil Procedure Act*](https://kenyalaw.org/akn/ke/judgment/keca/2022/562) CAP 21 laws of Kenya, seeking for the following reliefs: 1. ***Spent.*** 2. **That the firm of Mutea Muthuri & Associates advocates be allowed to come on record and enter appearance for the respondent/applicant.** 3. **That the tribunal be pleased to stay execution of the judgement of the tribunal pending the hearing and determination of this application.** 4. **That pending the hearing and determination of this application the tribunal be pleased to restrain the claimant, their servants, their agents, assigns or persons acting on their behest from levying execution.** 5. **That the tribunal be pleased to set aside the judgement of the court pending the hearing and determination of this application.** 6. **That the tribunal be pleased to set aside the judgement of the court.** 7. **That the tribunal be pleased to make such further and /or better orders as it deems just and fair.** 2.The Application is supporting by an affidavit sworn by Harun Eugean Oduor Owande dated 24th July 2024. **Respondent’s case** That the tribunal entered a summary judgement on 22nd July 2025 against him in favour of the claimant for repayment of Ksh1,606,774/=. That a memorandum of appearance dated 29th may 2025 was filled through the E- filling system of the tribunal but the platform failed to map out the law firm of M/s Mutea Muthuri & Associates. As a result, the law firm failed to get notified for mention dates of the matter. That later, upon successful mapping, it was realised by his advocate that a summary judgement had been entered against the respondent/Applicant. That the Respondent /Applicant is apprehensive that the claimant may execute the judgement and urged the tribunal to intervene. **Claimants Response.** 3. The Claimants opposed the Respondent’s application on the grounds that the memorandum of appearance dated 29th May 2025 was filled after the entry of judgement on 22nd July 2025 and without leave of the tribunal. That the Respondent/Applicant failed to file a draft defence in order to enable the tribunal to consider whether it raises any triable issue. In conclusion the claimants state that the Respondent’s application is a delaying tactic which is intended to delay the realization of the fruits of the judgement hence the Application should be dismissed with costs to the Claimant. 4. On the mention date of 21st August 2025 the respondent/Applicant’s counsel brought to the attention of the tribunal that his client intends to engage with the claimants with a view to reach out of court settlement. The tribunal granted the parties to proceed to with the negotiation and if successful to record a consent. later when the parties failed to agree, the tribunal directed the parties to canvass the matter by way of written submissions. 5. Having considered the Respondents Notice of motion, his written submissions and the replying affidavit of the Claimants together with the written submissions and the cited authorities. The tribunal has isolated two (2) issues for determination. **i) Whether the tribunal can set-aside the summary judgement entered on 22nd July 2025 together with all the consequential orders pending the hearing and determination of the application?** **ii) Who should bear the cost of the application.** **ANALYSIS** **i) Whether the tribunal can set-aside the summary judgement entered on 22nd July 2025 together with all the consequential orders pending the hearing and determination of the application?** 6.The law governing summary judgement is provided under order 36 Rule 1 & 2 of civil which provide: **(1) In all suits where a plaintiff seeks judgment for-** **(a) liquidated demand with or without interest; or** **(b) the recovery of land, with or without a claim for rent or *mesne* profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or *mesne* profits.** 7. In the instant case, a summary judgement was entered by the tribunal on 22nd July 2025 because despite being served with the claimants’ pleadings the respondent failed to file a memorandum of appearance and further failed to file statement of defence. As a litigant, the respondent under paragraph 3 of his supporting affidavit stated that he instructed the firm of Mutea Muthuri &Associates to enter appearance and to act on his behalf. Little did he know that the law firm was not dully mapped in the e-filling platform of the judiciary hence the delay to enter appearance. 8. Observing the inevitability of occasional lapses or mistakes by litigants or advocates in the normal course of things, Apaloo JA (as he then was) famously stated in [*Phillip Kiptoo Chemwolo and & Anor v Augustine Kubede (1986) eKLR*](https://kenyalaw.org/akn/ke/judgment/keca/1986/87) that :- “**Blunders will continue to be made from time to time and it does not follow that because a mistake has been made that a party should suffer the penalty of not having his case determined on its merit. “I think the broad equity approach to this matter is that unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs. The court, as is often said, exists for the purpose of deciding the rights of parties and not for the purpose of imposing discipline....”** Similarly, In the Case of **Lucy Bosire v Kehancha Div. Land dispute Tribunal & 2 Others (2013) eKLR, Odunga J held as follows: -** **“It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits.** 9. Granted that the Respondent/Applicant gave clear instructions to his advocate but the law firm had issues with the e-filling platform which was beyond the paygrade of the respondent, we echo the long line of court’s decisions that hold that the mistake or an omission committed by an advocate should not be visited upon an innocent litigant. 10. Turning to the failure by the respondent to file a draft defence, the records held in the tribunal shows that the respondent did not file any defence in contravention of Order 7 Rule 1 that provide: “**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 fourteen days after he has entered an appearance in the suit and serve it on the plaintiff within fourteen days from the date of filing the defence and file an affidavit of service”.** In furtherance of Order 7rule 1 of the civil procedure rules2010, the court in the case of **Bentham International Supplies Limited -V- Paul Ndegwa Mwangi & Another [2013] eKLR** found that a defence filed in breach of the rule constituted an abuse of process and it was struck out. 11. Further, the court in the case of **Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono [2015] eKLR** observed that: **“Before the grant of summary judgment, the court must satisfy itself that there are no triable issues raised by the defendant, either in his statement of defence or in the affidavit in opposition to the application for summary judgment or in any other manner. What then is a defence that raises bona fide triable issue? A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial.” It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court.”** 12. Apart from the grounds contained in the Notice of motion application which are repeated in the supporting affidavit of the respondent, there is nowhere, the respondent disputed the claimants claim neither has he filled any evidence to show that he has either repaid in full or paid in part the loan outstanding. There is literary no document placed before the tribunal by the respondent to consider whether there is any triable issue or not. This is a sign of a person who is not interested in putting up a spirited defence; but rather a person clutching on straws. 13. However, granted that this tribunal possess discretionary powers to set-aside or vary a judgement as provided under order 10 rule 11 of the civil procedure Rules and Rule 17 of the cooperative tribunal (Practice and procedure) Rules 2009, we do not consider it just to set aside the judgement entered on 22nd July 2025 without security of cost. Rule 17 of the cooperative tribunal rules provide as follows: “**A judgement, order or award made e-parte under these rules may, on application, be set aside on such terms as may be just.** While Order 42 Rule 6(2)(b) of the Civil Procedure Rules 2010 provide for security of cost and is couched in mandatory terms as follows: No order for stay of execution shall be made under sub rule (1) unless— **(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and** **(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. (emphasize ours)** 14. More clearly, the court in the case of Focin Motorcycle Co. Limited v Ann Wambui Wangui & another [2018] KEHC 8358 (KLR), held that: - “**The purpose of the security needed under Order 42 is to guarantee the due performance of such decree or order as may ultimately be binding on the applicant. It is not to punish the judgment debtor,,,, Civil process is quite different because in civil process the judgment is like a debt hence the applicants become and are judgment debtors in relation to the respondent. That is why any security given under Order 42 rule 6 of the Civil Procedure** **Rules acts as security for due performance of such decree or order as may ultimately be binding on the applicants. I presume the security must be one which can serve that purpose**.” (*underline ours*) 15. The Respondent submitted under paragraph 13 (e) that he will suffer prejudice if the judgement is executed before being heard. However, the respondent had this to say regarding the claimant: **“**By contrast, the claimants suffer no prejudice that cannot be compensated by appropriate conditions such as security for costs if the tribunal deems fit to impose them”. This is a clear indication that the respondent is willing to abide by the tribunal’s order regarding security of costs and security for due performance in the event that the judgement is upheld. 16. In that regard, we consider it just to order the respondent to deposit the principal amount claimed of **Ksh1,606,774/** = into a joint interest earning account within 21 days from the date of this ruling. This amount shall be the security for due performance of the decree should the final determination not favour the respondent. The signatories of the account will be both advocates of the claimant and the respondent. 17**.** Regarding whether this tribunal can interfere with its judgement entered on 22nd July 2025 by setting it aside pending hearing and determination, it is on record that the respondent was properly serviced with the summons and the claimants’ pleadings. This is a fact that the respondent did not dispute, therefore the judgement in our opinion is a regular judgement. The court in the case of [*James Kanyiita Nderitu & another v Marios Philotas Ghikas & another*](https://kenyalaw.org/akn/ke/judgment/keca/2016/470) [2016] KECA 470 (KLR) the court held: **“From the outset, it cannot be gainsaid that a distinction has always existed between a default judgment that is regularly entered and one, which is irregularly entered. In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in default judgment. Such a defendant is entitled, under Order 10 rule 11 of the *Civil Procedure Rules*, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment, and will take into account such factors as the reason for the failure of the defendant to file his memorandum of appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment.** 18. The tribunal has unfettered discretion to determine if there is good cause that may warrant the setting aside of the regular default judgment. Having failed to file a statement of defence, the respondent missed a fundamental principle of law that could have persuaded the tribunal to consider the prayer to set aside the judgement. However, despite giving unsubstantiated explanation about lack of being mapped into the e-filling judiciary system, the high court and the superior have repeatedly held that technological glitches within the judicial e-filling system should not be used to lock out a litigant or punish an advocate’s systemic restrictions. 19. Regarding the length of time, it is noted that the respondent filed the application within two a record of (2) days after the entry of the judgement showing that the respondent was desirous to defend the suit. 20. The right to be heard before an adverse decision is taken against a person is fundamental and permeates into our entire justice system. Further the tribunal is a life to the fact that denying the application under the circumstance would violate the right of the respondent/applicant to a fair hearing under Art. 50(1) of the Constitution of Kenya 2010. 21. In light of the forgoing, it is our finding that the Notice of Motion application dated 24th July 2025 has merit and is hereby allowed with conditions: Accordingly, we make the following orders: - 1. The firm of Messrs Mutea Muthuri & Associates Advocates are granted leave to come on record for the Respondent. 2. The judgement entered on 22nd July 2025 is set aside, conditional upon the Respondent/applicant depositing the entire claimed sum of Kshs.1,606,774/= in a joint interest-earning account in the names of the advocates for the parties within twenty one (21) days from the date of this ruling, in default the stay shall automatically lapse and the claimants are at liberty to execute. 3. Mention for Pretrial Directions on 14th October, 2026. Ruling dated and delivered *virtually* at **Nairobi** this **16th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson****signed 16.7.2026** **Hon. Beatrice Sawe Member signed 16.7.2026** **Hon. Fridah Lotuiya Member signed 16.7.2026** **Hon. Michael Chesikaw Member signed 16.7.2026** **Hon. P. Aol Member signed 16.7.2026** Tribunal Clerk Jemimah