[2022] KECPT 209 (KLR)

PCEA Kandara Parish Sacco Society Limited v Mwaura (Tribunal Case 545 of 2017) [2022] KECPT 209 (KLR) (Civ) (26 May 2022) (Ruling)

Neutral citation: [2022] KECPT 209 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 545 of 2017

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

May 26, 2022

Between

PCEA Kandara Parish Sacco Society Limited

Claimant

and

John Migwi Mwaura

Respondent

Ruling

1. The Application for determination is Notice of Motion dated October 25, 2021. The Application seeks for orders:a.That this Application be certified as urgent and be heard ex parte in the first instance.b.Pending further orders, the Warrant of Arrest in execution against the respondent/applicant issued by the Honourable Tribunal on June 18, 2021be suspended/lifted.c.That pending the hearing and determination of this application, there be a stay of execution of the judgment and resultant decree herein.d.That the alleged Process Server who has sworn an affidavit of service of the summons and the claim dated November 1, 2017be cross examined.e.That the ex-parte judgment made against the respondent/applicant herein on January 19, 2018, and the resultant decree be set aside and the defendant be granted 14 days to file his response to the claim.f.That costs of the Application be provided for.

2. The Application is premised on the grounds on the face of the Application and affidavit in support of John Migwi Mwaura sworn on October 25, 2021to which he would like the Tribunal to refer to his affidavit sworn on November 12, 2020. He confirms he is a member of Claimant Sacco. He states the judgment was entered pursuant to a falseaffidavit of Service dated November 1, 2017. He sought for time to cross examine the Process Server as he had never been served.He learnt of the case in November 2018, when claimant sought to execute the judgment and decree against him.On November 9, 2018he instructed advocate to represent him and the said advocate filed a notice of appointment of advocate on November 13, 2018and that his advocate only opposed the notice to show cause then but did not apply for the judgment to be set aside. That the mistake by his advocate should not be visited on him. Thus his application – for irregular judgment to be set aside. He states he has been condemned unheard and has a triable defence marked JMMS.

3. The claimant/ respondent filed a replying affidavit sworn by S.M.Muthomi datedJanuary 6, 2022 filed onJanuary 7, 2022. The advocate stated they filed suit on September 5, 2017acting with claimant’s instructions to recover a liquidated sum of Kshs. 265,125/= plus cost and interest.They duly instructed Samson Karau Mutiso a licensed Process Server to effect service on the Respondent which he did as per his affidavit of service marked CI.The respondent failed to enter appearance and default judgment allowed by the tribunal for Kshs. 432,298/=.On November 9, 2018 the firm of Kamau Mwangi and company advocate filed notice of appointment of advocates who did not file an Application to set aside judgment.

4. That Peter Kinyanjui Muiruri another license Court Process Server effected a Notice to Show Cause datedOctober 4, 2018 on respondent and he failed to attend court on December 11, 2018when the matter came up and warrant of arrest were issued.The respondent was arrested and released on September 5, 2019 when he was ordered to pay Kshs. 10,000/= every month in a bid to settle the decretal sum.Court entered judgment on admission in favour of claimant against respondent for Kshs. 328,755/=.An amended decree was issued dated September 25, 2019respondent was served against with notice to show cause.On November 18, 2020 when matter came up for mention the judgment had not filed a response and requested for more time to comply.OnMay 27, 2021Tribunal determined the Notice to Show Cause and issued Warrants of Arrest against Respondent.

5. It is this action that has prompted the respondent to move an Application to court to set aside judgment.Theclaimant/respondent aver the respondent /applicant is denying service of summons to enter appearance and the case as all along proceeded with his full knowledge.There is no just cause to warrant the tribunal to set aside judgment in default entered on March 16, 2018. it has taken respondent 3 years since judgment was entered and issuance of Warrant of Arrest to the application to be made.The draft Defence annexed is a sham and raises no triable issues.The Application is denied of merit and should be dismissed.

6. The Tribunal upon looking at the pleadings directed for the process server to present himself and be cross examined to try establish the truth of the matter on service.The respondent’s alleged non-service and prayer d was to cross examine the process server of his affidavit of Service dated November 1, 2017. The same came for cross examination of Process Server on March 16, 2022where the said Process Server Samson Mutiso stated he is the one who served the respondent in CTC. NO 545 OF 2017 and CTC.NO. 546 OF 2017. He stated his business was to serve the summons and pleadings and is not privy to the contents of the case.

7. For CTCNO. 545/2017 – he stated he made service in the presence of the claimant’s Chairman.He stated he served him at 11. 30a.m at the shopping centre.As per theaffidavit of service on September 21, 2017while in company of claimant’s Chairman – Joseph Mbira Kairuki they proceeded to Naaro shopping centre in Muranga. He states the Respondent was identified to him by claimant’s chairman.On cross examination which question the notice to show cause the Process Server then stated he served therespondent in Karuruga.He stated Karuruga is in Naaro village therefore it is the same place.For CTC.NO. 546/2017 he stated he served him at 11. 00 o’clock.The timing between CTC.NO 545/2017 and CTC.NO. 546/2017 are different one was 11. 00a.m on the other is 11. 30a.m.

8. The Claimant and Respondent had filed their written submissions and Respondent filed their written submissions dated January 25, 2021on January 28, 2022and Claimant’s filed their written submissions dated January 24, 2022 on February 28, 2022. Having carefully considered the Application, response, affidavit of Service and written submissions by the parties the issue for determination is issue one.Whether the respondent was served with the summons to enter appearance and statement of claim.

Issue two Whether exparte judgment against Respondent should be set aside? 9. Issue OneWhether therespondent was served with the summons to enter appearance and statement of claim.The Process Server Samson Mutiso was cross examined and he did respond to all the questions directed to him. Indeed- from the evidence adduced the said process server testimony was consistent and we do believe the respondent was actually served with summons to enter appearance and Statement of Claim.The Tribunal has no reason to doubt the said Process Server as the only reasons given was that the area/place of service was different.The Process Server confirmed the place of service Karurungo and Naaro village are the same place.

10. Issue twoWhether exparte judgment against Respondent should be set aside?Order 10 Rule (1) Civil Procedure Rule 2010provides for the court’s discretion in setting aside judgment.It reads:“(1)Where no appearance has been entered for a defendant who is an infant or person of unsound mind, before proceeding further the plaintiff shall apply to the court for an order that some person be assigned guardian of such defendant by whom he may appear and defend the suit. (2) No order may be made under sub-rule (1) unless the summons has been served and Order 32 rule 3 (4) has been complied with, unless the court otherwise orders.Order 10, Rule 2: Affidavit of service upon non- appearance. 2. Where any defendant fails to appear and the plaintiff wishes to proceed against such defendant he shall file an affidavit of service of the summons unless the summons has been served by a process-server appointed by the court.”The question we ask is whether the default judgment herein is regular or irregular judgment.Regular judgment is where the respondent has been served with summons to enter appearance but for some reasons he has failed to enter appearance or file defence, resulting to default judgment.Irregular judgment is where therespondent have not been properly served with the pleading, summons to enter appearance and thus judgment entered in default was done erroneously.This judgment is set aside as a matter of right.

11. In this matter as has been stated the judgment entered is a regular judgment as the Tribunal is satisfied with service done.Further, we take note the Respondent has taken part in the case proceedings for notice to show cause and even responded to the same and determination given.We now wonder why at a later stage he states that his then advocate did not follow instructions and file an Application to set aside the defaulted judgment.Even if this was so or the position he knew all along about the case. What stopped him from following up since the year 2018 and 2020 when the notice to show cause was issued and he participated in the proceedings.This is indeed an afterthought on the respondent’s side in trying to bring/argue their case well after the boat has sailed.The first time in 2018 the respondent gave commitment to pay monthly instalments meaning he admitted to the claim.second time in 2019 the respondent responded to notice to show cause and did not bring about the issue of service and let to Warrant of Arrest which they now wish to set aside and file Defence.

12. We have further perused his Statement of Defence marked JMMS and indeed the same is full of mere denial, not raising any triable issues to change our minds on the same.In the case of Shah v Mbogo & another[1967] EA it was held that:“The Court’s discretions to set aside exparte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to obstruct or delay the cause of justice, the motion should therefore be refused.”

13. The upshot of the above is that the Application dated October 25, 2021 lacks merit and the same is dismissed with cost to theclaimant/respondent.Orders to apply to CTC NO. 546/2017.

RULING SIGNED, DATED AND DELIVERED AT NAIROBI VIRTUALLY THIS 26TH DAY OF MAY, 2022. Hon. J. Mwatsama Deputy Chairperson Signed 26. 5.2022Mr. P. Gichuki Member Signed 26. 5.2022Mr. B. Akusala Member Signed 26. 5.2022Tribunal Clerk NasiekuGacheru for the Respondent/ApplicantMuthomi for the Claimant/RespondentHon. J. Mwatsama Deputy Chairperson Signed 26. 5.2022