[2025] KECPT 183 (KLR)

Omandi v Transcom Co-operative Savings & Credit Limited & another (Tribunal Case 302/E434 of 2023) [2025] KECPT 183 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 183 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 302/E434 of 2023

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

February 27, 2025

Between

Joel Otondi Omandi

Claimant

and

Transcom Co-operative Savings & Credit Limited

1st Respondent

Kenya Union of savings & Credit Limited

2nd Respondent

Judgment

1. The Application sought for the following orders:1. That the Notice of Motion application be heard ex- parte and to issue a garnishee order Nisi in terms of order 23 Rule 1 of the Civil Procedure Rule 2010. 2.That the account Number 021691 being held by the Garnishee for the judgement debtor be frozen.3. That all monies due in account No. 021691 held by KUSCCO be attached to satisfy the sum of kshs.222,856/= plus interest at 14%.4. That costs be provided for.

2. The Tribunal considered the Notice of Motion and on 30th April 2024, it granted order No. 2 in the following terms:“That order Nisi is hereby issued in terms of prayer 2 of the application to wit: order Nisi is hereby issued against the Garnishee for the account held on behalf of the respondent, attaching ksh222,856 held in account No. 021691 as may be sufficient to satisfy partially or fully the sum of ksh222,856 plus costs therein.”An order for hearing was scheduled for 8th July 2024.

3. Before the schedule hearing of date, the judgement debtor file a Notice of Motion application dated 5thJuly 2024 the subject of this ruling seeking for:1. – spent2. – spent3. That the Tribunal do issue a temporary order stating all proceedings for this suit herein pending hearing and determination of this application.4. That the Tribunal do set aside the ex-parte orders against the suit and to set the matter for hearing on merit of the claimant suit.5. Cost to be provided.

4. The Application raised Eight(8) grounds as the reasons why the request to set aside the ex-parte summary judgement and all the Consequential Orders is merited.

5. The Tribunal directed that a Preliminary Objection dated 3/6/2024 and Application dated 18/4/2024 are held in obeyance pending the determination of the instant application dated 5/7/2024Parties were therefore directed to file their written submissions

6. Having read through the evidence on record filed by the Claimant and the Replying Affidavit filed by the Judgement Debtor on 7/8/2024 together with documentary evidence which had not been brought to the attention of the Tribunal earlier. We have further read and analyzed the written submissions of the parties and the attached authorities.

7. From our analysis, we isolate three issues for determination:a.Whether a temporary order can be issued to stay at the proceedings of this suit pending hearing and determination of the application.b.Whether the tribunal can set aside the ex-parte orders and all other consequential orders.c.Who will bear the cost of this application?

a)Whether a temporary order can be issued to stay the proceedings of this suit? 8. It is the mandate of the Tribunal to attend to all applications which are filed before the tribunal and when the claimant filed his Statement of Claim dated 24/5/2023 together with all his supporting documents. It is on record that the tribunal set the matter to roll by summoning the Respondent/ Judgement debtor to enter appearance.

9. The Respondent chose not to enter appearance or file a Statement of Defence. This explains why the Tribunal entered an ex-parte summary judgement against the respondent in accordance with the provisions of Order 10 Rule 4(1) of the Civil Procedure Rule 2010 which state:1. “Where the plaintiff makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall on request enter judgement against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filling of suit at such rate as the court thinks reasonable to the date of the judgement and costs.”

10. Upto the stage of execution of the judgement by the Decree Holder, the records in the Tribunal show that the Respondent did not participate. They were woken up when served with Garnishee orders by the decree holder of which they quickly filed a Notice of Motion Application and sought leave to have the firm of Wakiaga Semekia & co Advocate to come on record for them. This was granted by the Tribunal orders of the Tribunal dated 8/7/2024 which also ordered the Judgement Debtor/ Respondent to file their responses within 14 days from the date of the order.

11. On filing a response to the Claimants’ Statement of Claim, the Tribunal has noted a number of facts with evidences pleaded by the Judgement Debtor/ 1st Applicant in a Replying Affidavit dated 7/8/2024 which facts were not within the knowledge of the tribunal before entering judgement.

12. Order 19 Rule 3 of the Civil Procedure Rules 2010 provide that:“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove.”Provided that in interlocutory proceedings or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

13. The Replying Affidavit and the Supporting Affidavit of one Mr. Peter Kimani the chairperson of the Judgement Debtor/Applicant together with the evidences is considered and can only be tested by cross- examination.

14. The Replying Affidavit of the judgement debtor / applicant raise fait of payment of Kshs. 50,000/= (fifty thousand shillings) during the pendency of this suit, fait which when proved will certainly reduce the decretal sum paragraph 6 of this replying affidavit speak to this as:“That since the filing of this case in 2023, the judgement debtor has paid Kenya shillings fifty thousand (50,000) and endeavor to pay the balance.”

15. The Co-operative Tribunal ( Practice and Procedure) Rules 2009 under Rule 11 (2) provide that:“Any party served with a chamber summons or Nom may file a Replying Affidavit or grounds of opposition. However, any party who desires to be heard and appears to the Tribunal to be a proper party to be heard, may be heard despite failure to file Replying Affidavit or Grounds of Opposition (emphasize ours) “

16. Given that the Judgement Debtor / Applicant has approached this tribunal and requested to be heard, we have no reason to decline hence we order for temporary stay of the proceedings of this suit and grant the Judgement Debtor/ Applicant the opportunity to defend the claim and or pay the decree holder, whether the tribunal can set aside the ex-parte orders and the consequential orders.

17. The ex-parte judgement was entered based on the facts pleaded by the Claimant. However, when the Tribunal granted leave to the Judgement Debtor/ Applicant to file a defence to the claim, they stated under paragraph 6 and 7 of their Replying Affidavits that they had paid kshs.50,000/= during the pendency of this suit. Specifically, he stated under paragraph 7“That since the filing of this case in May 2023, the Judgement Debtor has only paid ksh50,000/=.”

18. This admission is in tandem with the Judgement Debtor’s defence in their Replying Affidavit paragraph 6 which state:“That since the filing of this case in May 2023, the judgement debtor has paid Kshs. 50,000/= once proved shall tilt the orders acquired by the claimant/ Respondent”.

19. The Judgement Debtor/Applicant filed a copy of a payment voucher issued on 2/2/2024 for Kshs. 25,000/= which is alleged that the claimant declined to accept. We fund this change of heart to be in bad faith because earlier he had accepted and received kshs.50,000/=.

20. Further, we note that the Judgement Debtor stated under paragraph 5 of the Replying Affidavit shown by Mr. Peter Kimani who is the chairman in that they are ready to pay the balance.

21. Given that setting aside an exparte judgement is a discretionary decision of the court/tribunal. We are alive to the provisions of Order 12 Rule 7 of the Civil Procedure Rules 2010 which provide:“Where under this order, judgement has been entered or the suit has been dismissed the court in application may set aside or vary the judgement or order upon such terms as may be just.”

22. Having accepted to pay the Claimant the balance, it does not augur well to hit a person when he/she has raized his/her hands in sublimation. In the same vein, we acknowledge that the Judgement Debtor/Applicant demonstrated that they actually paid Ksh.50,000/= which was acknowledged by the claimant. The claimant on his part acted in bad faith when he declined to collect the Ksh.25,000/= thereby raising suspicion that he opted out of the mediation arrangement that he had agreed with the Judgement Debtor.

23. In conclusion, to allow the judgement debtor to pay the balance to the Claimant, we hereby set aside the ex-parte order granted under the ex-parte judgement of the Tribunal.

24. In summary, it is hereby orderedPrayer 3- Spent1. Exparte judgment is hereby set aside.2. The applicant to pay thrown away costs of Kshs. 1500/=3. Mention for directions and Pre-trial directions on 22. 4.2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF FEBRUARY, 2025 IN THE PRESENCE OF:HON B. KIMEMIA - CHAIRPERSON SIGNED 27. 02. 2025HON J. MWATSAMA - DEPUTY CHAIR SIGNED 27. 02. 2025PHILIP GICHUKI - MEMBER SIGNED 27. 02. 2025BEATRICE SAWE - MEMBER SIGNED 27. 02. 2025FRIDAH LOTUIYA - MEMBER SIGNED 27. 02. 2025P. AOL - MEMBER SIGNED 27. 02. 2025Tribunal Clerk JonahOmandi advocate for Claimant/RespondentWakiaga advocate for 1st Respondent