[2024] KECPT 1733 (KLR)

Muriithi & another v Macharia (Tribunal Case 853/E947 of 2022) [2024] KECPT 1733 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1733 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 853/E947 of 2022

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

October 31, 2024

Between

Jane Waruguru Muriithi

1st Claimant

Mercy Nyambura

2nd Claimant

and

Agnes Wangari Macharia

Respondent

Ruling

Notice of Motion Application 1. The Notice of Motion Application dated 27th June, 2024 is brought under Article 48 and 50 of the Constitution, Section 78 (2) of the Cooperative Societies Act, Rule 34, 11, and 17 of the Cooperative Tribunal (Practice and Procedure) Rules, Order 42 Rule 6 Order 21 Rule 12 of the Civil Procedure Rules seeking among others Orders:a.Spent.b.That there be a stay of execution of the judgment entered by the Honourable Tribunal as against the Respondent pending the hearing and determination of the Application.c.That the Respondent be allowed to liquidate the decretal sum in equal monthly installments of Kshs 3000 till payment in full.

2. The said application was based on the following grounds:i.That there is judgement against the Respondent which was entered ex-parte.ii.That the Respondent was never served with Summons and Memorandum of Claim and with the matter being a liquidated claim, interlocutory judgment was entered.iii.That execution of the decree issued from the judgment has since commenced.iv.That the Respondent has fundamental constitutional right to access justice and fair hearing which has so far been denied to her by dint of the ex-parte interlocutory judgment.v.That it is trite law that a party should never be condemned unheard.vi.That the Respondent is cash constrained and hence wishes to liquidate the decretal sum in installments as the amount owing is not disputed.vii.That it is only fair and in the interest of justice that the Application be allowed.

3. According to the Respondent, she only became aware of the suit on 8th May, 2024 when she was served with a Notice to Show Cause dated 26th February, 2024 and that the Affidavit of Service deponed by Daudi Kipkosgei Suter purporting to have contacted her through telephone number 0723832877 and consequently affected service on her in Pipeline Estate on 3rd November 2022 is false.That in 2022, the Respondent was using mobile number 0780265000 and not 0723832877 which was being used by her then husband for family business. That she has never operated any mitumba business in Pipeline Estate as it is deponed in the Affidavit of Service or any such business anywhere in Kenya and as such, the contents of the said Affidavit are false, misleading and amounts to perjury.That in 2022 the Respondent resided in Rongai in Nakuru County as she is a diabetes patient, a condition which she mainly managed through medication, constant blood sugar monitoring and dieting.That the Respondent's condition was made worse by an unfortunate accident sometimes in 2021 where she slipped and fell on her right-hand side causing total numbness of her right lower leg occasioning temporal paralysis from the right hip joint downwards. That for close to one year she was placed on wheelchair and could not walk and she had to attend multiple therapy sessions to remedy the situation and now walking is currently limited by the chronic pains and temporal numbness from the hip joints downwards.That she has gone through a lot as the motor vehicle that she bought using the loan was repossessed and due to the irreconcilable differences with her then husband, they parted ways in 2022 leaving her to single handedly meet the basic needs for her children and owing to her financial medical situation and lack of any other formal employment, she resulted to staying up with her single parent whom she depends on for the day-to-day upkeep.That be as it may and having been advised by her Advocates on record, she is still willing to liquidate the decretal sum with monthly installments of Kshs. 3000/= till payment in full due to her current challenges and as such she is seeking the indulgence of the Honorable Tribunal to allow the Application.

4. The Claimants filed their Replying Affidavit dated 26th July 2024 stating among others:i.That the application is a mere sham, an after-thought and an abuse of the Honorable tribunal and is incompetently before the Tribunalii.That the Summons and Statement of Claim were served on the Respondent through a licensed process server on 3rd November 2022 and the respondent is aware and privy to the proceedings but choose to ignore, snob, disrespect or otherwise disobey the summons served upon heriii.That the Respondent has admitted to owing the Claimants and her averments raise no triable issues, and as such there is nothing to go for full trial for. given that she has even agreed to start paying the decretal amount in question.iv.That the Respondent’s prayer to pay Kshs 3000/= towards settlement of the decretal sum will mean it will take over 18 years to clear the decretal sum and as such the amount proposed is not tenable.v.That the Application should be dismissed with costs and the Claimants allowed to proceed with execution, or in the alternative the Respondent should be compelled to deposit the sum of Kshs 264,104/= plus costs and interest.

5. We have considered the Notice of Motion Application dated 27th June, 2024 and the affidavits filed, and the only question remaining for determination is as to whether the orders sought in the Application should be considered.Should the orders sought in the Notice of Motion Application dated 27th June, 2024 be considered?It is important to begin by indicating that the discretion as to whether or not stay an ex parte judgement is exercised to avoid injustice and hardship, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.Therefore, in considering whether or not to stay the judgement and subsequent decree of this Tribunal, we will consider the matter in the light of all the facts and circumstances both prior and subsequent and the respective merits of submission as presented by parties to ensure that we do justice to all the parties.

6. We have looked at the submissions of both parties and I think it is clear from the start that the Respondent has no issue or has not raised any objections as to whether she owes the Claimants or as to whether there is an issue with how much of what she owes the Claimants has been calculated. She has not challenged the debt, neither has she challenged the sum in question - her appeal is that she has gone through a lot in life as a result of sickness and is currently unemployed and depending on a single parent who takes care of her and her children, and as such, she wants a favorable mode of repayment or to be allowed to pay through installments of Kshs 3000/=.

7. In as much as this Tribunal sympathizes for the Respondent given the position she has found herself in, medical condition or change of fortunes is not sufficient reason for staying a judgement or execution, especially if it is clear to the court that there is no contest to the claim or decretal sum. The much this Tribunal can do in such cases is to consider a favourable repayment mode, but not to stay the execution.This Tribunal is in total agreement with the Claimants that the sum of Kshs 3000/= paid monthly may take 18 years or more and as such, it is not in the interest of justice or public policy for cases which the facts are clear like this for the decretal sum to be liquidated in 18 years.Final Orders:i.The Notice of Motion Application dated 27th June, 2024 is dismissed with costs.ii.The Respondent to pay Kshs 30,000/- on or before 10. 12. 2024iii.Subsequently, the Respondent will pay a sum of Kshs 10,000/- every month on or before the 10th of every month beginning from 10th January 2025 till the decretal amount is paid in full.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. Hon. B. Kimemia - Chairperson Signed 31. 10. 2024Hon. J. Mwatsama - Deputy Chairperson Signed 31. 10. 2024Hon. Beatrice Sawe - Member Signed 31. 10. 2024Hon. Fridah Lotuiya - Member Signed 31. 10. 2024Hon. Philip Gichuki - Member Signed 31. 10. 2024Hon. Michael Chesikaw - Member Signed 31. 10. 2024Hon. Paul Aol - Member Signed 31. 10. 2024Tribunal Clerk MutaiMuriuki advocate for Judgment Debtor/ApplicantMercy Mureithi presentHon. B. Kimemia - Chairperson Signed 31. 10. 2024