[2021] KECPT 621 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.310 OF 2020

PALADIN PROPERTIES LIMITED..........................................................CLAIMANT

VERSUS

STIMA INVESTMENT CO-OPERATIVE SOCIETY LIMITED.....RESPONDENT

RULING

1. The Application before the Honorable Tribunal is one dated 11. 12. 2020 and filed on 15. 12. 2020.

The same requests for orders:

1. That this Application be certified urgent and heard ex-parte in the first instance;

2. That pending the hearing and determination of this application, this Honorable court be pleased to set aside in toto the said summary judgment dated 3rd December 2020;

3. That there be a stay of execution of the judgment issued on 3rd December 2020 pending the hearing and determination of this application;

4. That this Honorable court be pleased to allow the Response to the statement of claim filed herein as duly filed and served; and

5. That the costs of this application be provided for.

Based on the grounds that the Respondent/Applicant instructed their Advocate to enter appearance on 8. 10. 2020. however, before they could do so their office was hit by the Covid-19 Pandemic forcing the advocates to close their office and for staff members to isolate and advocates could not proceed with the suit as instructed.

2. The said Application is supported by the Affidavit of Dickson Munenethe Advocate on record for the Applicant herein.

He states that as they prepared to file a Defence they were informed of Summary Judgment that had already been entered on 5. 12. 2020.

He further avers the mistakes of an advocate should not be visited upon the innocent party herein being the Respondent and further the Respondents have an arguable Defence which ought to be considered.

3. The Claimant opposed the Application vide a Replying Affidavit sworn by Racheal Wanjiku Ngindu drawn and filed on 21. 1.2021.

The averments of the Replying Affidavit are that the Application ought to be dismissed with costs. They claim the Respondent advocate served them with a Memo of Appearance on 8. 10. 2020 via email and that the Respondent had a whole week to file a statement of Defence before they were “allegedly” hit by Covid -19.

They further aver the Liza Karivu who is said to have been affected by Covid - 19 is a stranger and not known whether she works for the Respondent firm.

4. Parties were ordered to canvass the Application by way of written submissions.

The Applicant/Respondent filed their submissions dated 3. 2.2021 on even dates.

The Claimant filed their submissions dated 17. 2.2021 on 18. 2.2021.

We have considered both parties written submissions and affidavits.

5. The case herein is for setting aside summary judgment. The Respondent learnt of judgment while attempting to file this statement of Defence.

Issues

1. Whether service was proper/whether default judgment was properly entered.

2. If defence raises triable issues.

3. Costs.

ISSUE ONE

Whether service was proper/whether default judgment was properly entered.

While considering whether to set aside interlocutory judgment the court looks at the 3 issues set out above.

Service in this instance is not disputed even by the Respondent who entered Appearance for the Respondent but failed to file a statement of Defence in good time owing to one of their staff members getting infected with Covid- 19 and thus closing office.

Therefore the issue of service is not disputed .

6. ISSUE TWO

Whether the Defence raises triable issues

For any Application to set aside interlocutory judgment to succeed it is imperative that a draft Statement of Defence is filed.

The Applicant’s attached a draft Defence in their Application and all the court has to look at is whether there are triable issues raised in the Defence and is not mere denials.

In the case of Patel -vs EA Cargo Handling Services Limited [1974] EAthe court held that:

“That where there is a regular judgment as is the case here, the court will not usually set aside the judgment unless it is satisfied that there is a Defence on the merits.”

In this respect, Defence on the merits does not mean a Defence that must succeed, it means a “triable issue” that is an issue which raises a prima facie Defence which should go to trial.

With this in mind the Statement of Defence as filed has raised triable issues since it also stated that they would raise a Preliminary Objection.

We also note that the matter is not clear cut and parties should be given their day before the Tribunal to aerate their issues.

Having considered all the submissions and Affidavits herein we are of the opinion the Respondent does deserve or have a right to be heard and defend their claim.

To this end we allow the Application dated 11. 12. 2020 and set aside Summary Judgment entered on 3. 12. 2020.

Costs in the cause

Respondent to file and serve their Statement of Defence witness statements and documents within 14 days hereof..

Mention on 28. 7.2021 for Pre- trial directions.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021.

Hon. B. Kimemia Chairperson Signed 27. 5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021

Mr. P. Gichuki Member Signed 27. 5.2021

Tribunal Clerk Leweri

Miss Mugo for Claimant : Present

Miss Makoha holding brief for Munene for Respondent/Applicant: Present

Hon. B. Kimemia Chairperson Signed 27. 5.2021