[2024] KECPT 1378 (KLR)

Opiyo v Nyando Sacco Limited (Tribunal Case 583/E419 of 2021) [2024] KECPT 1378 (KLR) (Civ) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1378 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 583/E419 of 2021

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

August 29, 2024

Between

Morris Asuma Opiyo

Claimant

and

Nyando Sacco Limited

Respondent

Ruling

Notice of Motion Application 1. The Notice of Motion Application dated 19th May, 2022 and filed on 24th May, 2022 is brought under Section 1A,1B,3,3A of the Civil Procedure Act, Order 10 Rule 11, Order 51 Rule of the Civil Procedure Rules seeking among others Orders that:i.Spentii.The Honourable court be pleased to set aside the default judgment/ Decree entered on the 16th March, 2022 together with all Consequential Orders and directions flowing therefrom.iii.Upon the grant of prayer (ii) above, the court be pleased to grant leave to the Applicant to file its Statement of Defence out of timeiv.That the Honorable court be pleased to issue an order of stay of execution of the decree issued and 16th March, 2022 pending the hearing and determination of the Application.

2. The Application was supported on the grounds that:a.On 18th February, 2022 the firm representing the Claimant filed their memorandum of appearance together with a statement of response through the Email of the Tribunal but same was not acted upon.b.On 22nd February, 2022 they did a follow up email to the Tribunal using the same email and even requested for assessment of filing fees, and the same was still not acted upon.c.On 27th March, 2022 they received an email from the Tribunal/ notifying them that judgment has been entered in default of appearance and that a decree has been extractedd.They have a good and meritorious Defence to the Statement of Claim and taught therefore to be allowed to reinstate the same through a hearing inter- parties.e.It is clear that judgment that was entered on 16th march, 2022 in default of appearance and failure to file a Defence was, irregular as the mistake was not of the own makingf.He will suffer prejudice and irreparable harm if the Respondent was to proceed and execute the decree.

3. This Tribunal on 30th May, 2022 issued orders of stay of execution of the decree pending the hearing with further orders given on 22nd September,2022 for parties to file their written submissions as they try to settle the matter out of court.

4. Given that the parties have not reached a settlement, the only question remaining for determination, is as to whether this Tribunal should set aside the default judgment of 16th March, 2022 and the Decree entered.

Settling Aside of Default Judgment 5. The starting point in this ruling is to consider whether the judgment of 16th March,2022 was regular or irregular.

6. Regular default judgments are entered in cases where a Respondent has been duly served with summons to enter appearance, but for one reason or another has failed to enter appearance or file a defence necessitating the court to enter a default judgment in such cases, courts have unfettered discretion when deciding whether to set aside or not, and consider many things that range from reason (s) for the failure to enter appearance or file a Defence, length of time it took since the default judgement was entered, whether that intended defence raises triable issues and likely prejudice parties will suffer if the judgment is set aside.

7. On the other hand, irregular judgment happens in cases where the Respondent has not been served properly with summons to enter appearance.

8. In such cases courts do not have discretion and the default judgment is set aside ex-debito justitiae -as a matter of rights the reason why such judgment are set aside as a matter of right and not as a matter of discretion, is because the party against when it is entered, has been condemned without notice of the allegations against him being given any opportunity to be heard and his response being considered to answer those allegations.

9. Evidence filed in this case tends to suggest that the judgment this Tribunal entered on 16th March, 2022 was irregular as the Claimant made efforts to file his Memorandum of Appearance and Statement of Response and even did an email to follow up only the same, and the Tribunal Registry was unable to act on the same. It is our considered decision that the right for a party to be heard is central to our judicial system and to allow the decision of the 16th March, 2022 and the Consequential Orders and Decree to stand will negate that fundamental rights.

Final Orders1. Application notice of motion dated 19/5/2022 is found to the merited.Default judgment entered on 16/3/2022 and all Consequential orders and decree are set aside.2. Leave is granted for the Respondent to file their statements of Defence and all other pleadings 21 days from to day3. Costs in this cause.4. Mention to Pre-Trial Directions on 4/12/2024.

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 JonahMs. Odhong advocate for the RespondentMuso advocate for Claimant/RespondentHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 8.2024.