[2024] KECPT 1713 (KLR)

Mwalimu National Savings & Credit Co-operative Society Limited v Wachira (Tribunal Case 21/E 023 of 2022) [2024] KECPT 1713 (KLR) (31 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1713 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 21/E 023 of 2022

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

October 31, 2024

Between

Mwalimu National Savings & Credit Co-operative Society Limited

Claimant

and

Lucy Wahito Wachira

Respondent

Ruling

1. Ruling on the consolidated Applications:i.The Notice of Motion Application dated 23rd May, 2024. ii.The Notice of Motion Application dated 27th May, 2024. iii.Notice of Preliminary Objection dated 8th July, 2024,The story of the three Applications go way back to 23rd May, 2024 when the Respondent filed a Notice of Motion Application under Order 21 Rule 12 (1) Order 22 Rule 22 (1), Order 51 Rule 1 and 3 of the Civil procedure Rules, Sections 63(e) 1A, 1B and 3A of the Civil Procedure Act seeking among others:i.That the Honorable Tribunal to set aside the ex-parte judgement and decree dated 6th February, 2022 and all Consequential Orders arising thereto.ii.That the Honorable Tribunal be pleased to strike out the entire suit with costs to the Respondents.iii.That the Honorable Tribunal be pleased to grant such other orders as it may deem just and appropriate.

2. This Tribunal gave directions on 27th May, 2024 for the Application to be served with a date of 19th August, 2024 given for confirming compliance. The Respondent sub sequentially filed another Application dated 27th June, 2024 upon realization that the directions given were not going to protect her property as the Claimants had instructed auctioneers to put up an advertisement for her property on 24th June, 2024. That Application was seeking among others, orders that:i.Spent.ii.Pending the hearing and determination of the Application inter-parties, the honorable Tribunal be pleased to grant prayer (ii) of the Application dated 23rd May, 2024. iii.Pending the hearing and determination of the Application inter-parties, the honorable Tribunal be pleased to grant an order staying any sale, advertisement, adverse dealings, or dispose of Title Number Nyaribari chache/B/B/Boburia/11838 and maintaining the status quo.iv.The Application be heard together with the Application dated 23rd May, 2024.

3. In response to the two Applications, the Claimant on 8th July, 2024 filed a Notice of Preliminary Objection stating among others that:i.The firm of Kinyanjui Kirimi & Company are strangers in the matter and their filed Applications dated 23rd May, 2024 and 27th June, 2024 should not be entertained as they are not properly on record.ii.The Honorable Tribunal lacks jurisdiction to hear and determine the Applications dated 23rd May, 2024 and 27th June, 2024 as the Court is Functus Officio.iii.The Application dated 23rd May, 2024 and 27th June, 2024 are frivolous, vexatious and an attempt in form shopping, and the said Applications should be dismissed with costs.iv.The Applications dated 23rd May, 2024 and 27th June, 2024 are an abuse of the Court process and should be dismissed with costs.This Tribunal on 11th June, 2024 gave directions that:a.Parties do respond to the Applications and Preliminary objections in CTC E346/286 of 2022 and E 023/2021 of 2021. b.Interim orders of injunction are granted against Public Auction of property Number Nyaribari chache/B/B/Boburia/11838 till further directions are given in the matter on 17th July, 2024. c.The matter be mentioned together with CTC E 346/286 of 2022.

4. The Claimant filed his Written Submissions on 30th August, 2024 raising among others issues that:1. The Summary Judgement entered on 6th April, 2022 was regular as the Respondent was served and without any reasonable cause did not file a Defence or enter appearance.2. That the firm of Kinyanjui Kirimi & Co. advocates filed a Notice of appointment without obtaining leave contrary to order 9 Rule that is that is clear that an advocate or party coming on record post judgement must either first seek leave of court by way of a formal Application or obtain consent from the outgoing counsel.3. That the Honorable Tribunal is functus officio having rendered its judgement and issued a decree and cannot re-open deliberations on its directions, and as such, this Tribunal no longer has jurisdiction to issue orders if stay of execution pending hearing of the suit.4. That jurisdiction is everything and is a court finds itself not to have jurisdiction, it cannot even exercise discretionary powers to consider whether to set aside a judgement or not.5. That even if the Tribunal was to consider whether to set aside the judgement or not, the Application has been made 2 years later from when the judgement was issued, and no explanation has been given for the 2 year delay in making the Applications.6. That the Respondent has also failed to annex a draft Defence to demonstrate that there exists triable issues for the Tribunal to make a determination on.7. That the Respondent has also come to the Tribunal with unclean hands having defaulted on the repayment on the loan disbursed to her by the Claimant.8. That the Applications dated 23rd May and 27th June, are a plot to delay the execution of the decree of the Honorable Tribunal.9. That the prayer for stay of execution pending hearing is futile and amounts to mere academic exercise as the Respondent has failed to also make an Application for the suit to be reinstated.The Respondent filed his Written Submissions dated 28th August, 2024 raising among others.1. That there are sufficient grounds to set aside the ex-parte judgement, decree and other consequential orders issued on 6th February, 2022 as she was never made aware of the proceedings in the matter and only got wind of the same when the Claimant Sacco’s instructed auctioneers to sell her property.2. That the Claimants have not produced any concrete evidence to show that they served the Respondent the summons to enter appearance.3. That the Claimant has participated previously in another matter touching on the same subject matter filed by the Respondent but they have never disclosed to Court or to the Respondent about the existence of this matter despite them being represented by the same advocate in both parties.4. That the Claimant Sacco have filed a Statement of Defence in the other matter CTC E346 of 2022 and did not disclose the existence of this matter which had been filed earlier.5. That Article 30(1) of the Constitution mandates the Tribunal to ensure that there is a fair hearing, and as such, if she was never informed that there is a case against her and given the chance to defend herself, the outcome of such a case should be set aside as it was conducted without her knowledge, involvement or participation.6. That the Respondent has an arguable Defence as she has filed another case over the same subject matter E346 of 2022 and her Defence should be heard on merit.7. That the failure to appear and defend the matter was due to lack of knowledge, and had she been aware, she would not have filed another matter in respect of the same subject matter, but would have instead concentrated her time and resources in this particular suit.8. That the Respondent did not waste any time in filing the Applications once she got aware of the existence of the judgement and decree.9. That the Claimant will not suffer any prejudice if the Application is allowed since there is another case on the same subject matter and if they have a solid case and evidence as they allege, they can still bring their evidence on merit in the other case.10. That the Notice of Preliminary objection by the claimant is an afterthought and meant to frustrate the Application to set aside the Application for setting aside the judgement and decree.11. That the law does not obligate the Respondent to seek leave to be represented if they were not previously represented and as such, the Notice of Appointment of Advocates is sufficient as their advocate filed when they became aware of the existence of the suit at the stage of execution.12. That the Claimant is guilty of material non-disclosure having failed to disclose to the Tribunal or the Respondent about the existence of this suit when dealing with CTC E346 of 2022 and they have not given any reasons for their non-disclosure.13. That this suit will serve no purpose and should be dismissed as the Claimant has filed a Defence, Witness Statement and documents in CTC E346 of 2022. 14. That the Claimants conduct fits the bill and definition for abuse of court processWe have considered the three Applications and there are three questions remaining to be determined:i.Does the Tribunal have jurisdiction?ii.Is the Respondent Advocate properly on record?iii.Should this Tribunal set aside its judgement of 6th February, 2022?

Does the Tribunal have jurisdiction? 5. It is settled in law that courts have the power to exercise discretion and entertain Applications after cases have been determined in the interest of justice, especially on discovery of new and important matter of evidence, which was not within the knowledge of the parties or the Court.Courts exercise such discretion to correct mistakes or for sufficient reasons for the ends of justice. In this particular case, this Tribunal is persuaded that there is sufficient reasons including material non-disclosure of facts and lack of service granting this Tribunal jurisdiction as a matter of necessity to reopen this case and look at it afresh.Courts have been given liberty to look at pleadings and other relevant records when dealing with preliminary objections on jurisdiction, and as such, restricting this Tribunal to points of law to deny it jurisdiction when it is clear that there is material non-disclosure will not deny this Tribunal jurisdiction, especially if issues between the same parties over the same subject matters is still pending in this Tribunal in another case; CTC E346 of 2022. This Tribunal as a matter of necessity must retain jurisdiction in this matter for the following reasons.:a.The two cases are over the same subject matter by the same parties.b.The issue in the two cases arise from the same set of facts seeking identical orders.c.If this Tribunal does not retain jurisdiction, the other case CTC E346 of 2022 will be rendered res judicata.d.This tribunal must also retain jurisdiction to ensure that it does not end with two conflicting decisions over the same subject matter by the same parties when finally, the second case is heard and determined on merit.

Is the Respondent Advocate properly on record? 6. Order 9 Rule 9 provides the rule on procedure that must be followed when an Advocate or a party who has not been part of a court process wants to come on record after judgement has been given. That rule is clear that party or advocate can only come on record by first seeking the leave of court by way of a formal Application or by obtaining consent from the outgoing advocate.

7. In this particular case, facts and circumstances do not place the Respondent or her advocate within the mandatory requirement of Order 9 Rule 9 that:i.First, the Respondent is not a party coming into the case, she is a Respondent in the case.ii.Second, the Respondent has never been Represented by an Advocate before and as such there is no outgoing Advocate.It is also important to note that this Tribunal is mandated by the constitution that to serve justice, it should direct itself without undue consideration to rules and procedures that are technical. Parties have a right to be represented and if there is evidence to suggest that they have appointed an advocate in a case where they may not have full information, or that information was withheld from them, this Tribunal will not insist on procedural technicalities at the expense of dealing with the real substantive issues raised.

Should this Tribunal set aside it’s judgement of 6th February, 2023. 8. The issue before this Tribunal, at least from the Written Submissions, are two conflicting positions. From the Claimant, the Respondent was served with summons to enter appearance and file a Defence, but she chose not to. From the Respondent, she was not aware of the existence of this suit as she was never served or given the opportunity to defend the claim and that the Claimant is guilty of non-disclosure given that there is another case filed by her over the same subject matter, and even in that case the Claimant who is being represented by the same advocate as in that other case filed by her, has never notified the Tribunal or her of the existence of this case.This in effect, mean that according to the Claimant, we have a regular judgement, while according to the Respondent the judgement of 6th February, 2022 is irregular and should be set aside ex debito justiciae.This Tribunal is mandated to look at cases like this in light of all facts and circumstances both prior and subsequent to the filling of the Application seeking to set aside a judgement and to also look at the respective merits of the parties before it before deciding on whether to set aside a judgement or not.

9. We have looked at the circumstances of this case, and we are convinced that the Respondent was not aware of the existence of this case to mean she was never served as we don’t see the reason as to why she could have defended herself in this one as the parties are the same and the subject matter is also the same.We also don’t see the prejudice or hardship the Claimant will suffer if we set aside the judgement of 6th February, 2024 to allow the two cases to be consolidated or heard in tandem on merit to ensure that the final judgement is not premature, irregular or improper in the lens of justice.The Respondent has satisfied this Tribunal that the judgement of 6th February, 2022 and the subsequent decree that followed that judgement was irregular and as such this Tribunal exercises its discretion and sets aside the judgement of 6th February, 2022 and all Consequential Orders and decree.

Final Orders.i.The Notice of Motion Applications dated 23rd May, 2024 and 27th June, 2024 succeed to the extent of setting aside the Tribunal judgement of 6th February, 2024 and the Consequent Decree.ii.The Notice of Preliminary Objection dated 8th July, 2024 fails.iii.Costs in the cause.iv.Mention for directions with E346 of 2022 on 6/2/2025.

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 MutaiMs Nekoye for ClaimantNkatha holding brief for Kirimi for the Respondent.HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024