[2023] KECPT 820 (KLR)

Olwal v Baya Savings & Credit Cooperative Society (Tribunal Case 660/E748 of 2022) [2023] KECPT 820 (KLR) (Civ) (17 August 2023) (Ruling)

Neutral citation: [2023] KECPT 820 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 660/E748 of 2022

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

August 17, 2023

Between

Romeo Olwal

Claimant

and

Baya Savings & Credit Cooperative Society

Respondent

Ruling

1. The Application for determination is dated 19th December 2022. The same is brought under Rule 11 and 17 of the Cooperative Tribunal (Practice and Procedure) Rules, 2009. The Application seeks the following orders: -a.Spentb.There be stay of proceedings in the matter pending hearing and determination of this Application.c.The default Judgement be entered herein on the 25th October 2022 against the Respondent/Applicant be set aside and the Respondent/Applicant be allowed to defend the suit unconditionally.d.The costs of this Application be provided for.The Application is based on 8 grounds among them being that the delay in filing the Memorandum of Appearance and Defence was occasioned by inadvertent misfiling of the suit papers by the Respondent’s staff which led to a delay in instructing the Respondent’s lawyers.This Application is accompanied by a Supporting Affidavit dated 19th December 2022 and a Further Affidavit sworn by Gerry Wabuke dated 13th April 2023, in which he stated that as per Article 22(b) of the Sacco by laws duly approved by the members, the Respondent is ready to pay the Claimant his dues of Kshs. 792,705/= upon the receipt of the formal withdrawal letter and subject to the availability of funds. Further, that the delay to file the Memorandum of Appearance and Defence was not intentional, contumelious as alleged.

2. The Claimants response to the Application was filed on 8th March 2022 where they claim that the Application has no merit, is frivolous, vexatious, an abuse of the court, and meant to embarrass the fair administration of justice. The Claimant filed his Statement of Claim dated 3rd August 2022 and duly served the same upon the Respondent herein to their last known email address on 18th August 2022. They claim that as a consequence of the Respondent not entering appearance, the Claimant filed his request for Interlocutory Judgement dated 8th September 2022. the Claimant claims that a cursory look at the Defence dated 19th December 2022 reveals that the Respondent does not dispute the fact that the Claimant is a member of the Sacco and that he made contributions and held shares in the Sacco. In addition, the claim that the Defence is an admission of part of the amount due and owing to the Claimant and therefore does not raise triable issues ripe for determination by this court, a condition precedent for the grant of the setting aside orders.Further, they claim the Respondent has not offered any reasonable explanation for the delay but has instead given a flimsy reason which ought to be entertained by this Honorable court. They claim the delay was intentional, contumelious and therefore, is inexcusable. They claim that the Application being an abuse of court process should thus be dismissed with costs.

3. Parties to canvass the Application were directed by the Court to file their written submissions with the Claimant filling their written submissions dated 5th June 2023. The Respondents filed their written submissions dated 17th April 2023. As such the issue for determination is whether this court should set aside the default judgment delivered on 25th October 2022 and allow the Respondent to defend the suit.Setting aside judgment is provided under Order 10, rule 11 of the Civil Procedure Rules, 2010 which 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.Courts have the discretionary power to set aside ex parte judgment with the main aim being that justice should prevail. This was highlighted in Patel -v- E.A. Handling Services Ltd (1974) and Tree Shade Motor Ltd -v- D.T. Dobie Co. Ltd (1998) where the courts held that the discretion of the court should be exercised to avoid injustice or hardship resulting from accident, inadvertence and excusable mistake or error.In this case, the main ground upon which the Application to set aside the judgement was made was inadvertent misfiling of the suit papers by the Respondent’s staff which led to a delay in instructing the Respondent’s lawyers. Courts are guided by the provisions of Article 159(2) (d) of the Constitution and Section 1A and 1B of the Civil Procedure Act, 2010 in administering justice. The focus being on substantive justice, rather than procedural technicalities, and the just, efficient and expeditious disposal of cases.In this scenario, we are inclined to allowing the case in the interest of justice.

Upshot 4. The Application dated 19th December 2022 is allowed and as such allowed in terms of prayer;a.There be stay of proceedings in the matter pending hearing and determination of this Application.b.The default Judgement is entered herein on the 25th October 2022 against the Respondent/Applicant is set aside and the Respondent/Applicant is allowed to defend the suit unconditionally.c.No order as to costs.d.Respondent is granted 21 days from today to file and serve their Statement of Defence, Written Statement and List of Documentse.Claimant is granted corresponding leave to file and serve Supplementary documents if need be. In the event the Respondent fails to comply with these directions the Summary Judgement rendered on 25th October 2022 will stand.f.Mention for Pre-Trial Directions on 20th November 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 17. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 17. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 17. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 17. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 17. 8.2023HON. PAUL AOL MEMBER SIGNED 17. 8.2023Tribunal Clerk JemimahUmazi advocate for the ClaimantMr. Maindi holding brief for Nguru for the RespondentRuling delivered. Mention for Pre-trial directions on 20. 11. 2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 8.2023