[2024] KECPT 1211 (KLR)

Orebo v Sokoro Sacco Society Ltd (Tribunal Case 348 (E355) of 2023) [2024] KECPT 1211 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 1211 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 348 (E355) of 2023

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

May 23, 2024

Coram: Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member

Between

Abel Amwani Orebo

Claimant

and

Sokoro Sacco Society Ltd

Respondent

Ruling

1. The Respondent filed a Notice of Motion dated 11th August, 2023 under Article 50 of the Constitution, Section 1A, 1B & 3A of the Civil Procedure Act and Under Order 50 Rule 1, Order 9 Rule 10 of the Civil Procedure Rules seeking among others orders that:i.This Tribunal to order stay of execution of the orders arising from the ex-parte judgement delivered on 10th August, 2023. ii.This Tribunal to set aside the orders arising from the ex-parte judgement delivered on 10th August, 2023 and grant leave to the Respondent to defend the Claim.iii.That this Tribunal to order that the attached Statement of Response be deemed as duly filed upon payment of the requisite court fees.

2. The Notice of Motion was supported by the grounds that:a.The Respondent was condemned unheard for lack of appearance.b.The Defence filed has raised triable issues.c.Service was effected upon one of the Respondent’s officers who had lost a relative and after receipt of the document, he left without handing over the documents.d.The Application should be allowed for purposes of giving the Respondent an opportunity to defend themselves in a fair public hearing.e.That the Respondent will suffer prejudice if the Claimant was to execute the decree of Kshs. 1,200,000/=.f.It is in the interest of justice that the ex-parte judgement be set aside and the subsequent execution be stayed and/ or vacated.

3. The Claimant was a member of the Respondent Sacco from the year 2012 till around 2020 when he lost his job through redundancy. Through that period, he took several loans and made deposits in savings which were deducted from his pay slips. When he was declared redundant, he was unable to continue making deposits and as such resigned from the Sacco through a letter dated 13th June, 2020. That since resigning, it has taken more than 3 years without the Respondent realizing his savings, an act that is without any justifiable cause and in breach of the contract he had with the Respondent. this necessitated the filing of this Claim for judgement in the sum of Kshs. 1,200,000/=.The Respondent was served on 27th June, 2023 but did not enter appearance or file a Defence, which necessitated the Claimant to file an Application for Summary Judgement under Order 10 Rule 4 of the Civil Procedure Rules.

4. On 10th August, 2023, this Tribunal delivered Judgement which ordered the Respondent to pay the Claimant Kshs. 1,200,000/=. That Judgement is what has necessitated this Notice of Motion Application.This Tribunal has considered all the issues raised by the parties in their Written Submissions either in support or in opposition to the Notice of Motion Application dated 11th August, 2023 and the only issue remaining for determination is as to whether this Tribunal should stay execution, set aside its orders and grant the Respondent leave to defend the Claim.Stay of Execution, Setting Aside and granting of leave to defend the Claim.

5. The decision as to whether an ex-parte judgement should be set aside or not is an act of discretion which is exercised to avoid injustice and hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice.

6. In CMC Holdings Ltd vs Nzioki [2004] KLR 173, it was the courts position that:“… the court must consider not only the reasons why the Defence was not filed or for that matter why the Applicant failed to turn up for the hearing on the hearing date but also whether the Applicant has reasonable Defence which is usually referred as whether the Defence if filed already or if the Defence is annexed to the Application, raises triable issues…”

7. In this particular case, it is important to note first that the judgement this Tribunal entered on 10th August, 2023 was procedural as the Respondent was served and they have not denied service – the reason they have given for not entering appearance and filing a Defence is that an employee working for them received documents which they did not submit for further action because of bereavement.

8. Second, it is important to note that the Respondent filed this Application without delay. Just 3 days after this Tribunal delivered its judgement – judgement was entered on 10th August, 2023 and the Application filed on 15th August, 2023.

9. Third, it’s important to note that the Application has been filed with a Defence that in our opinion raises a triable issue – how much the Claimant is owed may need to go for a hearing to determine. TheClaimant believes his savings amount to Kshs. 1,200,000/= as at the date he resigned, the Respondent believes if they offset the loans the Claimant had taken with them, they owe the Claimant Kshs. 65,308/=.

10. Fourth, we have considered all the facts and circumstances both prior and subsequent to the filing of the Application and in as much as we find the reasons given why the Defence was not filed to be supported by evidence, we believe it is in the interest of justice to give the Respondent an opportunity to defend the Claim and avail evidence supporting their position that they only owed the Claimant Kshs. 65,308/= as at the time he resigned.

11. We find the Notice of Motion Application dated 11th August, 2023 to have merit and thereby make the following orders:i.The judgement delivered on 10th August, 2023 and decree is set aside.ii.The Respondent has been granted leave to defend the Claim granted 14 days to file and serve Statement of Defence, Witness Statement and List of Documents..iii.The Respondent to pay the Claimant throw-away costs of Kshs. 50,000/=.iv.Mention for directions on 7. 8.2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 23. 5.2024HON. BEATRICE SAWE - MEMBER SIGNED 23. 5.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 23. 5.2024HON. PHILIP GICHUKI - MEMBER SIGNED 23. 5.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 23. 5.2024HON. PAUL AOL - MEMBER SIGNED 23. 5.2024TRIBUNAL CLERK JEMIMAHRuling delivered in absence of parties.