[2019] KECPT 30 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 991 OF 2018

NGARA GRACIOUS SAVINGS&CREDIT CO-OPERATIVE

SOCIETY LIMITED...........................................................CLAIMANT

VERSUS

CHRISTINE WANJIRU KAGUNDU.............................RESPONDENT

RULING

The matter for determination is a Notice of Motion application dated 24. 5.2019 seeking the following orders:-

1. Thatthis application be certified as urgent and service to claimant/respondent be dispensed with.

2. Thatpending the hearing and determination of this application inter-parties and pending the hearing of the suit, there be a temporary stay of the judgment and decree issued on 11. 4.2019 and all consequential orders thereof.

3. Thatthe honourable court be pleased to aside the judgment and decree issued on 11. 4.2019 against the Respondent/Applicant and the Respondent be allowed to defend this suit.

4. Thatcosts of this application be in the cause.

Based on the grounds on the face of the application supported by the Affidavit of CHRISTINE WANJIKU KAGUNDO the respondent herein.

The same is opposed by the replying affidavit of the MERCY NYAMBURA filed on 18. 6.2019 and further replying affidavit of HAGGAI CHIMEI advocated filed on 26. 7.2019.

Claimant filed a further affidavit 29. 8.2019, the said application was ordered to be canvassed by way of written submissions, on 4. 10. 2019. only the respondent applicant filed written submissions at the time of recording the ruling.

The applicant seeks to set aside judgment entered on 3. 5.2019 they have submitted that at the time of service of the summons, the process server was not licensed that is 2. 4.2019 as per the attached copy of the license attached to the replying affidavit by the claimant.

That this therefore, is to the effect that at the time of service 4. 1.2019 the process servers did not have a license for the year 2019. They have cited the authority JOHN KOYI WALUKE VERSUS MOSES MASIKA WETANGULA, ECK and JAMES KULUBI OMWANGE (2000)eKLR

That the Process Server summoned for cross examination but he did not attend that the claimant denies having been served by the said Process Server and it was upon the claimant to proof on a balance of probabilities that service was effected.

That the applicant therefore seeks for the application to be allowed to enable the respondent prosecute her suit on merit devoid of procedural technicalities.

That further the interlocutory judgment did not meet the required standards since the process server ought to have attached his current practicing certificate while requesting for interlocutory judgment but there was not attached.

The Respondent failed to file the written submissions as ordered on 19. 8.2019 and 4. 10. 19, however in the replying affidavit the deponent MARY NYAMBURA the chairlady of the claimant herein has averred that on 4. 1.19 she took the said PETER Z. NJERU the process server herein to the house of the respondent and that she pointed out the respondent and the said Peter served the respondent.

That the said Peterwould come before the tribunal to confirm this position.

In the further affidavit of the same MARY NYAMBURA, she states that the replying affidavit shown by the advocate was fatally defective and should be struck out.

That both supporting affidavit and replying affidavit contradict each other on the issue of service since the respondent allegedly lied on oath.

That the Process Server was duly licensed as per annexure MN1.

We have carefully considered the written submissions on behalf of the applicant and the affidavits on behalf of the claimant. We note that the request for judgment was filed on 23. 3.2019 and attached therein was the affidavit of service deponed by PETER Z NJERU who deponed that on the 4. 1.2019 he served the respondent while accompanied by the claimant chairperson who pointed out the respondent to him. However, there was no practicing license attached to the affidavit.

We have also noted the license dated 2. 4.19 attached to affidavit of the claimant, we note that the date of the same and the submission of the applicant which indicates that at the time of service, process server was not duly licensed. We have also noted that the said license was not attached to the affidavit of service accompanying the request for judgment we also note that the claimant was ordered on 29. 7.19 to avail the process server for cross examination on 19. 8.19, however on this date the Process Server did not appear and the advocate on record for the claimant submitted that they would file the practicing license within 7 days therefore there will be no need for cross examination.

However, the service practicing license when filed bore the date 2. 4.19.

We note that the alleged service was on 4. 1.2019 hence this was before the alleged date of license issuance.

In the circumstances we find therefore that the application and submission of the respondent are merited and accordingly grant the application dated 24. 5.19. the applicant is therefore granted leave to file and serve their statement of defence within 14 days herein.

Corresponding leave is granted to the claimant to file and serve their reply to the defence within 7 days of service.

Costs in the cause.

Read and delivered in open court, this 7th November,2019.

In the presence of:

Claimant:Mbuthia advocate for the Claimant.

Respondent:Non-appearance.

Court Assistant:Leweri and Buluma.

B.Kimemia - Chairman-Signed.

R.Mwambura – Member-Signed.

P.Swanya - Member-Signed.