https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/271

Ndichu v Nairobi Women Hospital Maendeleo SACCO & another (Tribunal Case E951 of 2023) [2026] KECOPT 271 (KLR) (15 June 2026) (Ruling) Neutral citation: [2026] KECOPT 271 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E951 of 2023 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 15, 2026 Between Thomas Ndichu Claimant and Nairobi Women Hospital Maendeleo Sacco 1st Respondent Kameta Enterprise Auctioneers 2nd Respondent Ruling 1.This ruling dispenses with the Notice of Motion Application dated 30th January 2026, supported by an Affidavit sworn by one Linda Ogara, the Chairman of the 1st Respondent and brought under Order 1 Rule 13 and 14, Order XX Rule 53 (1), (2), 4, 56, 57, Order 51 Rule 1, Order 10 Rule 4,5,6, and 9 Order 39 rule 1, 2, 3(i) of the Civil Procedure Rules and Section 3, 3A and 63 (e) of the Civil Procedure Rules, 2010 laws of Kenya, & any other enabling provisions of the law. The Application seeks the following orders:a.Spentb.Spentc.Spentd.Spente.That upon the grant of prayer b), c) and d) leave be granted to the Applicant’s/Defendant’s to defend suit in merits.f.That cost of this Application be provided for. 2.The Application is premised on the grounds on its face which are inter alia that: The default judgement was entered against the Applicant on the 16th December 2024, and that the same was irregular since the Applicant was never served with the Plaint, or summons as required. That the Applicant only became aware of the default judgment when Kameta Enterprise Auctioneers ambushed them with a proclamation notice. That the Applicant has a meritorious defence, and that if the orders sought are not granted, the Applicant stands to suffer prejudice. 3.The Claimant filed a Replying Affidavit dated 17th February 2026. In their response, the Claimant informs this Tribunal that the advocate who was representing him, filed an Affidavit of Service confirming that the Respondents were indeed served with the Statement of Claim via email address at info.nwhsacco@gmail.com, and that the summons were served physically by a process server, one, Danson Mbote and in both instances affidavits of service were filed. They also aver that this Tribunal verified that service was indeed effected before they entered the judgement in default, and that the Respondents are attempting to frustrate him from enjoying the fruits of his judgement by misleading the court that they were not served. They pray that the Respondent’s Application be dismissed with costs. 4.None of the parties filed their submissions. Analysis 5.The question before this Tribunal is whether the Applicant is entitled to the reliefs that are sought to wit setting aside the judgement in default entered on the 16th December 2026 for the Claimant against the Respondent, and granting leave to the Applicant to defend the suit in merits. 6.The Applicant’s claim is that they were not served with the pleadings hence the judgement entered is irregular, while there is an Affidavit of Service on record. 7.The Affidavit of Service filed by a court process server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo v Bodi Bach [1987] eKLR, where the Court of Appeal held as follows: -There is a presumption of services 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. 8.Order 10 Rule 11 of the Civil Procedure Rules, on setting aside judgment provides that;“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 9.Before this Tribunal can consider whether to exercise its discretion in setting aside the interlocutory judgment, it needs to look into the question on whether the Affidavit of Service is indeed contested by the Respondents. In the Respondent’s Supporting Affidavit dated 30th January 2026, there is no mention on how the service is contested. All the Applicant informs this Tribunal is that they were not served. The Claimant claims that service was done via email for the Statement of Claim, and physically for the Summons and the Decree. There are also affidavits of service on record to that effect that also depone that the Respondents acknowledged service of the summons and the Decree. The Respondents have not denied the acknowledgement of service, nor raised any questions regarding the email that the Claimant claims they were served through. We find the evidence of service on record is overwhelming, and the Respondent has not refuted any of that. 10.We are, therefore, inclined to believe that the Respondents were indeed served, and that the Application to set aside herein is an afterthought meant to deny the Claimant of the fruits of his judgement. 11.In the upshot of the foregoing, we make the following orders;a.The Applicant’s Notice of Motion Application dated 30th January 2026 is found to be without merit, and the same is hereby dismissed with costs to the Claimant. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG.CHAIRPERSON SIGNED 15/6/2026HON. BEATRICE SAWE MEMBER SIGNED 15/6/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 15/6/2026HON. MICHAEL CHESIKAW MEMBER SIGNED 15/6/2026HON. P. AOL MEMBER SIGNED 15/6/2026Court Assistant - MutaiOtieno advocate for the ClaimantT & T Law advocates for the Respondent – No appearanceHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 15/6/2026