[2023] KECPT 917 (KLR)

PCEA Kayole Regulated Non-WDT Sacco Society Ltd v Njogu (Tribunal Case 318/E418 of 2022) [2023] KECPT 917 (KLR) (Civ) (3 August 2023) (Ruling)

Neutral citation: [2023] KECPT 917 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 318/E418 of 2022

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

August 3, 2023

Between

PCEA Kayole Regulated Non-WDT Sacco Society Ltd

Applicant

and

Martin Mwaniki Njogu

Respondent

Ruling

1. The Application for determination is vide a Notice of Motion dated 30. 9.2022 and filed on 14. 10. 2022. It is accompanied by a supporting affidavit by Benson Kihara Maraihu dated 30. 10. 2022 and filed on 14. 10. 2022. The Applicant/Claimant sought for the following orders:a.That leave be granted to the Applicant/Claimant to amend its Statement of Claim dated 22/06/2022 and consequently the Court be pleased to deem the Amended Statement of Claim dated 19/09/2022 as properly filed upon payment of such further pre-requisite court fees if applicable.b.that the Honourable court be pleased to strike out the Respondent's Defence dated 02/08/2022 for being bad in law and enter judgement in favour of the Applicant/Claimant as prayed in the Amended Statement of Claim dated 19/09/2020.

2. The Respondent, through a replying affidavit dated 16/01/2023 and filed on the same date opposed the striking out of the Defence. However, the Respondent had no issue with granting the first prayer only that it should be dispensed off first before moving to the second prayer.The Tribunal directed that the matter will be dispensed off by way of written submissions with the Applicant/Claimant filing their written submissions dated 04/05/2023 on 09/05/2023 while the Respondents filing theirs dated on 16/05/2023 on the same date.

Issues For Determination. 3. After perusing through the pleadings and the written submissions of both parties, it is the Tribunal's opinions that there two issues to be determined:i.Whether the Applicant/Claimant should be allowed to amend the claim?ii.Whether the Statement of Defence dated 02/08/2022 should be struck out?Issue OneWhether the Applicant/Claimant should be allowed to amend the claim?Order 8 of the Civil Procedure Rules is concerned with amendment of pleadings. Order 8 rule 3 allows the court at any stage of the proceedings on such terms as to costs or otherwise may be just and in such manner as it may direct, allow any party to amend their pleadings. In John Gitau Mwangi v Stephen Kabebe & Others the court set out the general principles for dealing with amendments. The overriding considerations were whether the amendments were necessary for the determination of the suit and the delay was likely to prejudice the opposing party beyond compensation. It should be noted that the Respondent did not oppose this prayer. Further, the Applicant/Claimant complied with the laid down principles for amendment of pleadings.The Tribunal, therefore, grants the Applicant/Claimant leave to amend the Statement of claim and serve the same to the Respondent.Issue TwoWhether the Statement of Defence dated 02/08/2022 should be struck out?The starting point for striking out of pleadings is order 2 rule 15 which states:“At any stage of the proceedings the court may order to be struck out or amend any pleading on the ground that-a.It discloses no reasonable cause of action or Defence in law; orb.It is scandalous, frivolous or vexatious; orc.It may prejudice, embarrass or delay the fair trial of the action; ord.It is otherwise an abuse of the process of the court,And may order the suit to be stayed or dismissed or judgement to be entered accordingly, as the case may be.

4. Further, the rules set out in order 2 rule 15 were expounded on in the case of DT Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another (Civil Appeal No. 37 of 1978). It is the Applicant/Claimant's position that the Respondent indeed admitted to the Applicant/Claimant's averments and that no triable issue was raised in the Defence. However, the Respondent has indicated upon. In the DT Dobie case (supra) it was held that:the power to strike out should be exercised after the Court has considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial Judge. On an application to strike out pleadings, no opinion should be expressed as this would prejudice fair trial and would restrict the freedom of the trial Judge in disposing the case”.It is therefore, the Tribunal's position that the Respondent should have their day in court and should not be denied audience when the Defence is already on record.

Determination.From the foregoing, the Tribunal order as follows :1. Leave for amending the Statement of claim is granted. The amended claim is deemed duly filed and should be served to the Respondent subject to payment of fees2. Prayer 2 is hereby dismissed3. Cost of the application follow the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 3. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 8.202HON. PHILIP GICHUKI MEMBER SIGNED 3. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 8.2023HON. PAUL AOL MEMBER SIGNED 3. 8.2023Tribunal Clerk JemimahOpiyo for claimant/ApplicantMusiro holding brief for Amutata for RespondentMention for Pre- trial directions on 19. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023