[2024] KECPT 1545 (KLR)

Mutanyi v Wekscol Employees Sacco Society Limited (Tribunal Case 984 (E017) of 2022) [2024] KECPT 1545 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1545 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 984 (E017) of 2022

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

September 26, 2024

Between

Thomas Mutanyi

Claimant

and

Wekscol Employees Sacco Society Limited

Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member)

Ruling

Notice of Motion Application 1. The Notice of Motion Application dated 27th May, 2024 is brought under Article 36 of the Constitution, Section 1A, 1B, 3A of the Civil Procedure Act, Order 10 Rule 11 and Order 51 of the Civil Procedure Rules and Section 76 of the Cooperative Societies Act seeking among others, Orders:i.Spentii.That the Honorable Tribunal be pleased to stay the execution of the decree issued on 8th May, 2024 arising from the interlocutory judgment delivered on 29th September, 2023 and all consequential orders pending the hearing and full determination of the application inter-parties.iii.That the Honorable Tribunal be pleased to set aside the judgment delivered on 29th September 2023.

2. The Application was supported by the Affidavit of Job Wamatoi and premised on the grounds that:a.On 14th May, 2024, the Claimant served the Applicant with sets of documents which included Statement of Claim, Witness Statement and List of Documents with no documents attached both dated 19th December 2022 and filed in court. Statement of Claim, Witness Statement and List of Documents both dated 20th December 2022 and filed in court on 3rd January 2023 together with the Summons to Enter Appearance dated 25th January 2023, and a letter dated 13th May 2024, Notice of Entry of Judgment dated 12th May, 2024 and a Decree dated 8th May 2024. b.The Applicant was not aware of any court proceedings in the matter until the service of the said documents.c.After becoming aware of the case, the Applicant immediately proceeded to instruct the firm of Omwando Mbaka & Co. Advocates to come on record and protect their interest in the matter.d.The execution of the decree might be carried out any time if there is no intervention of the Tribunale.It is just and proper that the Tribunal sets aside the ex-parte judgment and gives the Applicant a chance to defend the matter.f.The Honorable Tribunal has powers to set aside the ex-parte judgment to avoid the injustice or hardship on the part of the Applicant.g.The application has been made in a timely manner without unreasonable delay and it is in the interest of justice that the Orders sought are granted.

3. On 27th May 2024, this Tribunal gave directions for the Application to be served on the Claimant and for the Claimant to respond to the Application within 14 days. The Applicant was to file a Further Affidavit as well as a Written Statements upon service.Further directions were given to the Notice of Motion on 10th June 2024, a stay order was issued against Eshikhoni Auctioneers against the Warrant of Attachment of movable property, proclamation of attachment of movable property dated 7th June, 2024 pending mention of the Application on 15th July, 2024.

4. The Claimant filed his response by way of a Replying Affidavit and Written Submissions in which he states among others:i.That upon delivery of the said documents on 13th May, 2024 the Respondent’s Chairman Bernard Mukangai told the Claimant to come on 23rd May, 2024 to meet the Board and agree on the decretal sum being paid in three installments.ii.That on 27th May, 2024 the Respondent’s Chairman Bernard Mukangai called the Claimant and informed him that they would challenge the Summary Judgment.iii.That every time service was made upon the Respondent, the secretary or clerk received the documents but declined to sign or acknowledge.iv.that the secretary of the Respondent is aware of the case since he was served with the Statement of Claim, Verifying Affidavit, List of Witness Statements and bundle of documents all dated 18th December 2022. v.That the Respondent was aware of court proceedings having been served properly but chose to ignore or sleep on their rights and consequently the Respondent cannot be permitted to take advantage of their own default or omission to defeat the Claim as that would be prejudicial as they owe the Claimant shares worth 350,000/=vi.That the Respondent has no defense on merit or reasonable defense at all.vii.that the Application is brought in bad faith and meant to delay the realization of the fruits of judgment delivered by the Tribunal in the favor of the Claimant.viii.That there was proper service upon the Respondent, and as such the Honorable Tribunal entered summary judgment on 29th September 2023 which was regular and entered properly.

5. The Respondent filed their response by way of a Supplementary Affidavit of Job Wamatoi and Written Submissions in which they state among others:i.That the Replying Affidavit filed by the Claimant is frivolous, vexatious and an afterthought and purely directed at misleading the Honorable Tribunal.ii.That he is the secretary of the Respondent and has never met the said process server Anthony Masyongo, and also that their offices are not situated within West Kenya Sugar Company Limited as alleged by the process server.iii.That the Respondent is keen to have the process server Anthony Masyongo appear in court to enable them cross-examine him on his return affidavit of service dated 19th May 2022 which is a complete falsehood that he served the Secretary of the Respondent.iv.That the Honorable Tribunal's exparte judgment delivered on 29th September 2023 and all consequential orders should be set aside ex debito justitiae for the simple reason that there was no service of the pleadings together with summons to enter appearance.v.That it’s a Constitutional principle and right that no one should be condemned unheard, and the Respondent should be heard on merit.

6. We have considered the Application and scrutinized the written submissions filed and the only question remaining for determination, is as to whether this TribunalShould the Tribunal set aside its judgment of 29th September, 2023 and all the consequential orders?The beginning point is to indicate that the decision as to whether or not to set aside an ex parte judgement is an act of discretion intended to be exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. This was the position of the Court of Appeal in CMC Holdings Ltd vs. Nzioki [2004] KLR 173 where it stated that:“In an application for setting aside an ex-parte judgement, the Court exercises its discretion in allowing or rejecting the same. That discretion must be exercised upon reasons and must be exercised judiciously…In law the discretion that a court of law has, in deciding whether or not to set aside ex parte order was meant to ensure that a litigant does not suffer injustice or hardship as a result of amongst other an excusable mistake or error. It would not be proper use of such discretion if the Court turns its back to a litigant who clearly demonstrates such an excusable mistake, inadvertence, accident or error...”

7. In considering whether or not to set aside a judgement, a court has to consider the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary its own judgement, if necessary, upon terms to be imposed. Hence the justice of the matter and the good sense of the matter, are certainly matters for a court to decide.

8. In this particular case, The Claimant has availed in court sworn affidavit and evidence to confirm communication between himself and the Respondent Chairperson, to indicate that the Respondents were aware of this case and were even ready to settle the decretal amount through instalments. The Respondents have also not attached any draft defense or mase any averment to deny owing the Claimant.Article 159(2) (d) of the Constitution provides that “justice shall be administered without undue regard to procedural technicalities” and as such, this Tribunal is not persuaded to vary or set aside its judgement of 29th September, 2023 as it is clear to it that the Respondents were all along aware of the liability and this case.

9. Final Orders:i.The Notice of Motion Application dated 27th May, 2024 is dismissed with costs.ii.Interlocutory judgment entered on 29. 9.2023 still stands/upheld.

RULINGSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk JemimahOnyari Advocate for the Claimant.Omwando Mbaka advocate for Respondent – No appearanceFile closed.