[2021] KECPT 8 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT KISUMU

TRIBUNAL CASE NO. 311 OF 2020

NDA-BULAR MULTIPURPOSE CO-OPERATIVE SOCIETY................CLAIMANT

-VERSUS-

GEORGE OUNGO..............................................................................1ST RESPONDENT

RAPHAEL OBOLA............................................................................2ND RESPONDENT

JOSEPHINE KACHERO...................................................................3RD RESPONDENT

RULING

1. On 22nd September 2020, the Claimant filed a Statement of Claim dated 31st August 2020, charging the Respondents over misappropriation of Kshs. 102,000/= by the said Respondents, which monies were contributed by members of the Claimant for starting a sand business. Summons to Enter Appearance were extracted and served upon the Respondents, and the Respondents Entered Appearance on 5th October 2020. However, the Respondents did not file their Defence until 27th of November 2020, which is exactly 53 days from the time of entering appearance.

2. The Claimant went ahead to file an Application dated 19th January 2021, seeking, inter alia, Summary Judgment for the principal amount of Kshs. 102,000/= together with costs and interests. Grounds for this Application have been enumerated to accentuate the indebtedness of the Respondents.

3. The Claimant filed Submissions, which we have read and deliberated upon.

4. ISSUES FOR DETERMINATION

Having carefully considered the documents and arguments by both parties in their Written Submissions, we have framed the following issues for determination:

(a) Whether the Defence should be struck off for not raising justiciable grounds;

(b) Whether the Application meets the threshold for Summary Judgment.

5. ANALYSIS OF ISSUES

We now proceed to dissect the issues as follows:

(a) Whether the Defence should be struck off

The Claimant introduces a prayer seeking to strike out the Statement of Defence in their Written Submissions. No Application has been filed in this Tribunal seeking to strike out the Defence for failure to raise triable issues. The only prayer is for Summary Judgment, and as such this Tribunal cannot issue such Orders that were not prayed for in the primary pleadings. Parties are bound by their pleadings, and Orders not pleaded cannot be crafted in the Submissions. We find that this prayer cannot be granted by this Tribunal.

(b) Whether the Application meets the threshold for Summary Judgment.

The Claimant has invited this Tribunal to issue Summary Judgment on account of Order 36 Rule 1 of the Civil Procedure Rules 2010, which provides as follows:

In all suits where a plaintiff seeks judgment for—

(a)a liquidated demand with or without interest; or

(b)the recovery of land, with or without a claim for rent ormesneprofits, 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 ormesneprofits.

6. The plain and clear reading of Order 36 Rule 1 of the Civil Procedure Rules 2010 outlines the parameters for issuance of Summary Judgment, to wit, where the Defendant has appeared but not filed a Defence.

7. If the Defence is filed, be it a sham or otherwise, then the Summary Proceedings cannot be instigated, and instead the Claimant can file for striking out of Defence for being a sham, or lacking in terms of justiciability, in line with Order 2 Rule 15 of the Civil Procedure Rules 2010. In our considered view, this Application does not fall under the provisions of Order 36 Rule 1 of the Civil Procedure Rules 2010.

8. Having found no reason to strike out the Defence, and having looked at the Statement of Defence herein filed, we find that the Defence raises triable issues which must be ventilated before this Tribunal for a just decision to be arrived at. Reason wherefore, we find and hold that this ground of the Application also fails.

9. In the interest of justice, we find that the Orders sought should be denied and the Application dated 19th January 2021 be disallowed, and the matter to proceed to full hearing.

ORDERS

We therefore Order as follows:

(a)The Claimant’s Application dated 19th January 2021 is dismissed with costs in the cause;

(b)The matter to proceed to full trial: parties to file and exchange their witness statements and documents within 30 days hereof; and

( c) Mention for Directions on 6. 12. 2021

Ruling signed, dated and delivered virtually at Nairobi this 7thday of October, 2021.

Hon. B. Kimemia Chairperson Signed 7. 10. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021

Mr. P. Gichuki Member Signed 7. 10. 2021

Mr. B. Akusala Member Signed 7. 10. 21

Tribunal Clerk R. Leweri

No appearance by all parties.

Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021