[2025] KECPT 173 (KLR)

PCEA Ruiru Co-operative Savings and Credit Societies Limited v Mambo (Tribunal Case E1088/853 of 2023) [2025] KECPT 173 (KLR) (Civ) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 173 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E1088/853 of 2023

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

February 27, 2025

Between

PCEA Ruiru Co-operative Savings and Credit Societies limited

Claimant

and

Mutharia Antony Mambo

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 21st June 2024 supported by an Affidavit sworn by the Applicant herein, MUTHARIA ANTONY MAMBO, and brought under Order 10 Rule 11 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya and all other enabling provisions of the law. The application seeks the following orders:1. That this Application be certified as urgent service be dispensed with and be heard exparte in the first instant.2. That this Honourable court be pleased to stay execution of the exparte judgment entered herein on 30th January 2024 against the Respondent.3. That this Honourable court be pleased to set aside the ex-parte judgment entered herein on 30th January, 2024 against the Respondent and all consequential decrees and orders and to set the matter down for hearing inter-parties as there is already a response to claim.4. That the Respondent/Applicant be granted leave to file documents in their case and that they be allowed to defend the matter.5. That costs of this application be in the cause.

2. The application is premised on the grounds on its face which are inter alia that: The Applicant was not served with summons to enter appearance or any other document to show that there was a case against him in court. That it is in the interest of justice that the applicant being given an opportunity to defend himself and that he would suffer substantial loss if the orders sought are not granted.

3. A brief background of the matter is that the Claimant instituted a Claim dated 2nd November 2023 against the Respondent for Kshs. 156,281. 36/- being the amount allegedly owed to the Claimant by the Respondent. The Claimant thereafter filed a request for judgement dated 9th January 2024 and filed on 16th January 2024, on the basis that the Respondent was served with both summons to enter appearance and statement of claim but failed to enter appearance or statement of Defence. A duly filed affidavit of service was filed with the request for judgement. The matter was then set for 20th June 2024 for formal proof upon which the Respondents appeared and sought leave to make the present application and which leave was granted hence this application.

4. The Claimant/Respondent filed a Replying affidavit dated 19th August 2024. In their response, the Claimant/Respondent aver that they did serve the Applicant with the summons to enter appearance, physically at his cyber in Ruiru whereby he refused to acknowledge service, and also via WhatsApp messenger. The Claimant has produced screenshots of the messages sent also affidavits of service filed thereafter.

5. The application was canvassed via written submissions and both parties filed their submissions.

6. In their submissions, the Applicants aver that the judgement entered was not regular since they were not served. They pray that their application be allowed as prayed.

7. The Respondent, on the other hand, urges this Tribunal to dismiss the Applicant’s application on the basis that the Applicant was duly served but failed to enter appearance and file their Defence.

Issues For Determination 8. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the ex-parte judgment entered on 30th January 2024.

Analysis 9. The Claimant/Respondent averred that the Applicant was its member number 0000002993, and this is not disputed. The issue in this case is that the Applicant claims that it was not served with the service to enter appearance, while there is an affidavit of service on record. The affidavit of service filed by a court process server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo v Bodi Bach[1987] eKLR, where the Court of Appeal held as follows:-“There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings”.

10. It is now upon the person alleging that service was not done to show that indeed such Affidavit of Service was defective. In the instant case, the Applicant claims that it was never served at all.

11. This case concerns service of summons through electronic means which is now provided for under Order 5 Rule 22B of the Rules as follows;1. Summons sent by Electronic Mail Service shall be sent to the defendant's last confirmed and used E-mail address.2. Service shall be deemed to have been effected when the Sender receives a delivery receipt.3. Summons shall be deemed to have been served on the day which it is sent; if it is sent within the official business hours on a business day in the jurisdiction sent, or and if it is sent outside of the business hours and on a day that is not a business day it shall be considered to have been served on the business day subsequent.4. An officer of the court who is duly authorized to effect service shall file an Affidavit of Service attaching the Electronic Mail Service delivery receipt confirming service.

12. The Respondent avers that it indeed served the Applicant. On perusing the file, there is indeed an affidavit of service that has been duly filed. There are also screenshots of WhatsApp messages showing service to a phone number +254711480808 allegedly belonging to the Applicant. The Applicant did not dispute that this phone number. The Applicant however, deponed that he did not receive the summons sent through his alleged phone number. In exercise of its discretion, this court will proceed to look at the draft Defence to determine whether it raises triable issues.

13. This Tribunal has looked at the draft Defence filed with the application to determine whether there is a triable issue raised. The Claim is for repayment of amount allegedly owed to the Applicant by the Claimant. In response to the Claim, the Applicant has informed this court that he is not indebted to the Claimant because he has repaid all the amounts loaned. And a triable issue need not be one which will succeed but one that passes the SheridanJ Test in Patel V E.a. Cargo Handling Services Ltd. [1974] E.A. 75 at P. 76 (Duffus P.) that “…a triable issue …is an issue which raises a prima facie Defence and which should go to trial for adjudication.” The existence of a debt is only extinguished through repaying the same, and we find the Applicant’s averment that he has fully repaid the amount paid to be a triable issue that warrants further interrogation by this court.

14. In the upshot this Tribunal hereby makes the following orders;a.We find merit in the Notice of motion application dated 21st June 2024 and hereby set aside the ex-parte judgement dated 30th January 2024. b.Applicant is to pay the Respondents thrown away costs of Kshs. 10,000/- within 14 days of this rulingc.Matter to proceed to pre-trial. The parties to file their pleadings, witness statement and documents within 21 days herein.d.Pre- trial for directions on 6. 5.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. Hon. B. Kimemia Chairperson Signed 27. 2.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 2.2025Hon. Beatrice Sawe Member Signed 27. 2.2025Hon. Fridah Lotuiya Member Signed 27. 2.2025Hon. Philip Gichuki Member Signed 27. 2.2025Hon. Michael Chesikaw Member Signed 27. 2.2025Hon. Paul Aol Member Signed 27. 2.2025Tribunal Clerk MutaiMs. Wainaina for ClaimantNo appearance for RespondentHon. B. Kimemia Chairperson Signed 27. 2.2025