[2024] KECPT 1173 (KLR)

Otiende v Chuna Co-operative Savings AMD Credit Society Limited (Tribunal Case 413 of 2020) [2024] KECPT 1173 (KLR) (25 July 2024) (Ruling)

Neutral citation: [2024] KECPT 1173 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 413 of 2020

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

July 25, 2024

Between

Nixon Otiende

Claimant

and

Chuna Co-operative Savings AMD Credit Society Limited

Respondent

Ruling

1. The matter before the Tribunal for determination is the Respondent’s Notice of Motion Application dated 29th August, 2023, in which Application, the Respondent prays for orders:a.Spent.b.That, this Honourable Tribunal be pleased to set aside the judgement entered against the Respondent.c.That, this Tribunal be pleased to grant leave to the Respondent to file the Defence attached to Supporting Affidavit out of time.d.That, this Honourable Tribunal be pleased to set aside the formal proof hearing set for 12th October, 2023 and direct that the suit proceed for interparties hearing wherein all parties shall give their evidence and be cross-examined.e.That, the costs of this Application be in the cause.

2. The Application is premised on the grounds set thereunder and the Supporting Affidavit of Eric Mugo Advocate Sworn on 29th August, 2023. In response to the Application, the Claimant filed its ground of opposition dated 11th October, 2023. Both parties filed Written Submissions.The Respondent’s Written Submissions are dated 14th January, 2024 and filed on 7th March, 2024 while the Claimant’s Written Submissions dated 18th February, 2024 were filed on 7th March, 2024.

Respondent/Applicant’s Case. 3. The Respondent states that on 24th August, 2023, when the parties were ready to proceed for hearing, it was discovered that the Respondent had not filed a Defence in the suit and the Claimant’s counsel moved the Tribunal to enter judgement against the Respondent; which the Tribunal proceeded and entered against the Respondent and set the suit for formal proof hearing on 12th October, 2023. That the failure to file the Defence was an honest mistake on the part of the advocate.Further, the Respondent prays that the mistake of counsel ought not to be visited upon the client. That the Respondent be allowed to file the Defence draft of which is attached to the supporting Affidavit.

4. That no prejudice shall be visited upon the Claimant should the Application be allowed and that it is the interest of justice that the Respondent is allowed to defend the case, as it had filed the necessary supporting documents and witness statement.Further, the Respondent states that it is ready and willing to pay reasonable thrown away costs and ready to attend the hearing as soon as possible.

Claimant’s/Respondent’s Case. 5. It it’s Grounds of Opposition, the Claimant opposed the Respondent’s Application on the grounds that: -a.The Respondent is guilty of laches and indolence since service of Summons was effected on 30th October, 2020. b.The Respondent’s Advocates filed and served Notice of Appointment of Advocates on 2nd November, 2020 and having failed to file Defence cannot be termed as an innocent mistake as counsel dialed to the defend the Claim, thus inexcusable.c.The Respondent’s Application is fatally defective, frivolous, vexatious and an abuse of the Court process.d.The Draft Defence attached to the Supporting Affidavit is a sham, does not raise triable issues, and that the Respondents Notice of Motion should be dismissed with costs, being a waste of judicial time and the Claimant be allowed to proceed with formal proof hearing as scheduled on 12th October, 2023.

Determination. 6. We have considered all the documents filed by the parties, including the Submissions and cited authorities. It is evident from the record that counsel for the Respondent has participated all along in the proceedings in this matter and has filed all documents under order 11 and was ready to proceed with the matter with one witness on the 12th of October, 2023. It is also evident from the record that the advocates for both parties herein realized on the said 12th October, 2023 that the Respondent had not filed a response to the Claim.The fact that the Respondent’s Advocates filed comprehensive documents in compliance with Order 11 of the Civil Procedure Ruled and was ready to proceed with the hearing on the date set for hearing leads us to find on a balance of probability that the Respondent’s advocate indeed believed that all documents were on record. This does not exhibit indolence on their part. We called upon to exercise our discretion in determining whether or not the Respondent deserves the orders sought. As stated in the case of Philip Kiptoo Chemwolo & Mumias Sugar Company Limited v Augustine Kubede (1982-1988) cited by the Applicant herein, the court has unlimited jurisdiction to set aside or vary a judgement entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties.

7. We have considered the circumstances of the case leading to the 12th October, 2023 and noted from the record that the judgement entered in the 24/8/2024 is interlocutory and not final.We have also considered the draft response attached to the Supporting Affidavit and examined whether it raises triable issues warranting the hearing of parties on merit. In the case of Giciem Construction Company v Amalgamated Trade Services LLR No. 103 CAK which was quotes with approval of Job Kilach v Nation Media Group (supra), it was held:“... a triable issue is said to exist it there is a dispute in the facts which dispute can only be resolved after ventilation in a full hearing. As a general principle, where a defendant shows that he has a fair case for Defence or reasonable grounds for setting up a Defence or even a fair probability that he has a bonafide Defence, he ought to have leave to defend.”

8. In exercising our discretion, we find that the Respondent’s draft does not raise triable issues as between itself and the Claimant.We exercise our discretion in the interest of Justice and give the Respondents the benefit of doubt, this not being a Court of technicalities and allow the Respondents’ Notice of Motion Application dated 29th August, 2023 and set aside the interlocutory Judgment entered on 24/8/2023 and its Consequential Orders and following terms: -i.The Respondent to file and serve it’s response to the Claim herein within fourteen (14) days herein.ii.The Respondent’s pre-trial documents or record be deemed as duly filed and served upon the Respondent’s compliance with the orders under term 1 above.iii.Mention to confirm compliance and to take further directions on 8/10/2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 25. 7.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 25. 7.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 25. 7.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 25. 7.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 25. 7.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 25. 7.2024HON. PAUL AOL - MEMBER - SIGNED - 25. 7.2024Tribunal Clerk - JemimahMugo advocate for the ApplicantNo appearance for RespondentHON. B. KIMEMIA - CHAIRPERSON - SIGNED - 25. 7.2024