[2023] KECPT 810 (KLR)

Momanyi & 3 others v Kisuza (Tribunal Case 193 of 2021) [2023] KECPT 810 (KLR) (24 August 2023) (Ruling)

Neutral citation: [2023] KECPT 810 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 193 of 2021

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

August 24, 2023

Between

Gladys Kwamboka Momanyi

1st Claimant

Millicenr Oswanga Akumu

2nd Claimant

Inez Dores

3rd Claimant

Clarise Musalia

4th Claimant

and

Kelvin Mudanyi Kisuza

Respondent

Ruling

1. The matter for determination is an application dated 17. 09. 2021 filed on 27. 10. 2021, under Article 27,45,48,50 and 159 of the Constitution of Kenya, Order 5, Order 10 Rule 2, Order 51 of the Civil Procedure Rules. The Applicant sought the following orders1. Spent.2. That the honorable court does hereby proceed to issue summons to the process serves who files the affidavit of service of the summons and pleadings in the matter for cross examination on service to the respondent/ applicant.3. That the court be pleased to set aside the default judgement, the consequential decree, notice to show cause and any other consequential execution processes, orders and decrees.4. That the honorable court does hereby allow the respondent/ applicant to unconditionally defend the claim filed by the claimants.5. That the honorable court does here by issue any further orders it deems fit and just to issue in the circumstances.6. Costs.

2. The Applicant also file a Supporting Affidavit dated 17. 09. 2021 in support is the Application. The Application is based on the grounds that a default judgement was entered against the applicant for Kshs. 401,440/=, without the Applicant being served with the summons or the pleadings. The Applicant averred that he was only served with only the notice to show cause given on 16th August 2021. The applicant prayed to file their Defence, as the default judgement was irregular.

Issues for determination. a. Whether the defendant was served. 3. An Affidavit of Service sworn by David Kipkosgei Suter, an authorized court server, dated 28. 04. 2021; shows that the server received copies of the Summons, Statement of Claim and other document relating to of this suit on 26. 04. 2021 from Millicent Oswaga Akumu, one of the Claimants. Upon reception of the documents, he on 28. 04. 2021, served Mr. Kelvin Mudanyi Kisuza, the Applicant, who informed his he has an advocate. From the affidavit, we see that Applicant was served in person.

4. In Shadrack arap Baiywo vs. Bodi Bach KSM CA Civil Appeal No. 122 of 1986 [1987] eKLR, the Court of Appeal quoting Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 stated that:There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings.”

5. The Affidavit by David Kipkosgei Suter stands. The Applicant does not provide any evidence to challenge the Affidavit of the Process Server. Therefore, the Applicant was sufficiently served.

b. Whether leave to file a memorandum of appearance and a Defence should be granted 6. The Applicant claimed to not have been served and so he was not able to file a Memorandum of Appearance and a Defence. But, from issue (a) above, it is clear that he was served. He also filed their defense together with the application. Upon perusal, of the applicant does not have a prima facie defense. The applicant did not object to receiving a loan from Kenred Savings and due to unforeseen circumstances, defaulted. He denied even being served with any demand notices of the alleged sum. A demand letter dates 19. 08. 2020, annexed by the Claimants proves the contrary.

7. In the case of Gulf Fabricators v County Government of Siaya [2020] eKLR in paragraph 63, the court observed that:the power to set aside exparte judgment entered in default is discretionary. The principles upon which such discretion is to be exercise were set out by the Court of Appeal in Philip Kiptoo Chemwolo & Mumias Sugar Co. Ltd Vs Augustine Kubende (1982-1988) KAR 1036 where it was held inter alia, citing with approval the English case of Evans V Bartam [1993] AC 473: -“The discretion is in terms unconditional. The courts however have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly, there must be an Affidavit of merits, meaning that the Applicant must produce to the court evidence that he has prima facie Defence.”

8. The Applicant did file a draft defense, which raises a triable issue. On the matter, in the case of Misort Africa Ltd Vs Ps National Treasury And Planning &another [2020] eKLR, the court cited the case of JOb Kwach –vs- Nation Media Group Ltd it was held as follows: -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 to 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.”

9. It has been established that the Applicant was duly served and hence, aware of the suit. Although the Applicant was negligent in defending the suit, he acted without any delay regarding the matter of the default judgement against him and also filed his draft defense, which raises the issue that he has been servicing the loan which the Claimants guaranteed, and this therefore is a triable issue as he should be given an opportunity to prove the same.

c. Whether a stay of execution should be granted. 10. After consideration of issue (a), and (b) above; relying on the precedent Jomo Kenyatta University of Agriculture and Technology -v- Musa Ezekiel Oebal (2014) eKLR, the Court stated that the purpose of clothing the court with discretion to set aside ex-parte judgment is:To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice...”

11. The Applicant’s Draft Defence does raise triable issues, which would warrant examination by the Tribunal. It would therefore be in the interest of justice to allows the Application, so the Respondent does not suffer irreparable damages.

Upshot 1. That the Application dated 17. 09. 21 is allowed.

2. That the court is pleased to set aside the default judgement, the consequential decree, notice to show cause and any other consequential execution processes, orders and decrees with no orders as to costs.

3. Respondent to file Statement of Defence, Witness Statements and documents 14 days from today.

4. Failure to which default judgment will stand.

5. Mention for Pre-trial directions on 13. 10. 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 24. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 24. 8.2023Hon. Beatrice Sawe Member Signed 24. 8.2023Hon. Fridah Lotuiya Member Signed 24. 8.2023Hon. Philip Gichuki Member Signed 24. 8.2023Hon. Michael Chesikaw Member Signed 24. 8.2023Hon. Paul Aol Member Signed 24. 8.2023Tribunal Clerk JemimahMs. Kavue advocate holding brief for Chimei advocate for the Claimant.Kelvin Mudayi presentHon. J. Mwatsama Deputy Chairperson Signed 24. 8.2023