[2024] KECPT 1403 (KLR)

Olango & 14 others v Ndumo (Tribunal Case 727 of 2019) [2024] KECPT 1403 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1403 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 727 of 2019

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

August 29, 2024

Between

James Olango & 14 others & 14 others

Claimant

and

David Nderitu Ndumo

Respondent

Ruling

Notice Of Motion Application 1. The Notice of Motion Application is brought under Sections 78 and 87 of the Cooperative Tribunal Act, Rules 3,4,11 and 17 of the Cooperative Tribunal (Practice and Procedure) Rules, 2009, Sections 1A, 1B and 3A and Order 22 Rule 22 of the Civil Procedure Act and Rules 2010 seeking among others orders that:a.Spentb.That the Honourable Tribunal be pleased to issue temporary orders of stay of execution of its judgment and decree and all the consequential orders pending the hearing and final determination of the application interparties.c.That the Honorable Tribunal be pleased to set aside and/or vary its judgment and/or decree and set the matter for hearing interparties.

2. The Application was supported by the annexed Affidavit of the Respondent on the grounds that:a.He was never served with the summons to enter appearance and was therefore unaware of the claim.b.He has a Constitutional right to a fair hearing and or representationc.He became aware of the claim, judgment and decree when he was served with warrants of attachment by Wright Auctioneers on the 14th February, 2024. d.The Claimants are likely to attach his property, which includes household goods upon expiry of 7 days from the 14th February, 2024. e.He is likely to suffer irreparably should execution be allowed to proceed.

3. On 21st February, 2024 this Tribunal gave directions for the other parties to be served, and also granted a temporary stay of execution till hearing of the Application.

4. Further orders were given on 22nd April, 2024 for parties to file written submissions and/or further Affidavits. It is the Respondent’s position that he has continued to discharge his obligations under the loan terms with his last payment being on 6th February, 2024 the sum of Kshs. 81,000/= and as such he was surprised to be served with warrants of attachment.

5. We have considered the pleadings filed and the only question remaining for determination is as to whether this Tribunal should set aside and/or vary its judgment of 3. 8.2023 and the subsequent decree.

Should This Tribunal Set Aside And/or Vary Its Judgment Of 3Rd August, 2023 And The Subsequent Decree 6. The starting point in considering the direction this Tribunal should take with the Applications, is to acknowledge the existence and/or distinction between a judgment that is regularly entered and one that is irregularly entered. In a regular judgment, the Respondent (s) would have been duly served with summons for enter appearance but for one reason or another they failed to enter appearance or to file their statement of Defence resulting in a judgment against them. An irregular judgment on the other end, occurs when judgment is entered against a respondent who was never served, or was never served properly with summons to enter appearance.

7. In the first case, regular judgments courts have unfettered discretion in determining whether or not to set aside the judgment and must take into account factors such as the reasons for failing to defend or enter appearance, the length of time that has elapsed since the judgment was entered, whether the intended Defence raises triable issues, the prejudice the parties in the matter are likely to suffer and whether it is in the interest of justice to set aside the judgment.

8. In the second case, irregular judgments, courts do not have discretion and judgments are set aside ex debito justiciae, as a matter of right. For irregular judgments, courts do not even have to be moved by a party once its clear that the judgment was irregular.

9. In this particular case, we have looked at the documents and evidence filed in court, and it is our considered position that the judgment that was entered on 3rd August, 2023 was regular as the 1st Respondent was properly served with summons and evidence confirming he received and signed for the same are before court- he received and signed for the summons on 15th January, 2020. We have also looked at and analyzed the Affidavit of Service sworn by Patrick Njue on 21. 2.2020 in which he has deponed under oath to serving the 1st Respondent.

10. The next question we have asked ourselves as a Tribunal after confirming that the judgment and consequent decree was regular, is as to whether the 1st Respondent has provided sufficient reasons to persuade the Tribunal to set aside the judgment and whether it is in the interest of justice to the parties to do so.

11. It is our considered decision that the 1st Respondent was not denied the right to be heard and as such, the decision of 3rd August, 2023 cannot be said to have been made with some ‘fault’ on the part of the Tribunal or the other parties in the matter.

Final Orders i.The Application dated 19. 2.2024 is found to be without merit and dismissed with costs .

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHWambugu advocate for the ClaimantAriga advocate holding brief for Getange advocate for the 2nd RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024