[2021] KECPT 596 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.472 OF 2019

RACHAEL NDUNGE KITETU......................................................CLAIMANT

VERSUS

AIRTEL YES SACCO LIMITED............................................. RESPONDENT

RULING

Vide the Application dated 14. 1.2020, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That this matter be certified urgent and be heard exparte in the first instance and service hereof be dispensed with in the first instance;

2. That the Tribunal be pleased to allow Yes Sacco Limited to file appearance and defence out of time;

3. That pending hearing and determination of this Application the Tribunal be pleased to stay execution; and

4. That cost of this Application be provided for.

The Application is supported by the grounds on its face and the following Affidavits

a. Supporting Affidavit sworn by Benson Mbuthia Njiru advocate on 14. 1.2020;

b. Supplementary Affidavit sworn by the said Benson Mbuthia on 17. 2.2020

The Claimant has opposed the Application vide the Replying Affidavit sworn by herself on 23. 1.2020.

Vide the directions given on 25. 2.2021, the Application was canvassed by way of written submissions. The Respondent filed its written submissions on 8. 3.2020 while the Claimant did so on 15. 12. 2020.

Respondent’s Contention

Vide the instant Application the Respondent prays for the default judgment entered on 17. 10. 19 to be set aside on the ground that the Claimant sued and obtained judgment against a non-existent body.

Claimant’s Case

The Claimant has opposed the Application on the ground that the Application is a non-starter as those grounds advanced in is support are untenable. That the Respondent in its previous dealing with the Claimant was described as Airtel Yes Sacco Limited and that he is not aware if there was any change of name. that the inclusion of the word ‘Airtel ‘ in the description of the Respondent has not in any way prejudiced it. That the Defendant has no valid Defence raising triable issues. That it is truly and justify indebted to the Claimant.

Respondent’s Supplementary Affidavit

Vide the supplementary Affidavit sworn on 17. 2.2020, the Respondent has sought to rebut the averments made by the Claimant above. It reiterates the fact that the proceedings herein have been commenced against a non-existent entity.

Issues for determination

We have framed the following issues for determination

a. Whether the Respondent has established a proper basis for setting aside the default judgment entered on 17. 10. 2019;

b. Who should meet the costs of the Application?

Setting aside of default Judgment

We have jurisdiction to set aside a default judgment by dint of Order 10 Rule 11 of the Civil Procedure Rules. The Rule provides thus:

“ Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential Decree or Order upon such terms as are just.”

In the case of Patel – vs- East Africa Cargo Service Limited (1974)EA 75, the Court underscored this provision in the following terms:

“ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules.”

Before we can exercise our jurisdiction under Order 10 Rule 11 above, we firstly have to ascertain whether the default judgment is a regular or irregular one. If the Judgment is an irregular one, then we will set it aside ex debito justiciae.

This was the holding in the case of K- Rep Bank Limited -vs- Segment Distributors Limited [2017] eKLR.

The court in the case of Fidelity Commercial Bank Limited – vs- Owen Amos Ndungu & Another, HCC.NO. 241/1998 gave a distinction between a regular and irregular judgment as follows:

“ A distinction is drawn between regular and irregular judgments. Where summons to enter Appearance has been served and there is default in entry of Appearance the ex parte judgment entered in default is regular. But where the exparte judgment sought to be set aside is obtained either because there was no proper service or any service at all, of the summons to enter Appearance, such judgment is irregular and the affected Defendant is entitled to have it set aside as of right”

Where the default judgment is regular, then the Tribunal has to consider if the draft Defence filed with the Application raises triable issues. This was the holding in the case of James Kanyiita Nderitu & Another - vs- Marios Philotas Ghikes & Another [2016]eKLR. In the pertinent part, the court held thus:

“ In a regular default judgment, the Defendant will have been duly served with summons to enter appearance, but for one reason or another, he failed to enter appearance or to file a Defence, resulting in default judgment. Such a Defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules to move to court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as to the reason as for the failure of the Defendant to file his memorandum of Appearance, or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended Defence raises triable issues, the respective prejudice each party is likely to suffer whether on the whole, it is in the interests of justice to set aside the default judgment.”

Reasons for failure to file a memorandum of Appearance or Defence

The Respondent has not expressly given an explanation as to why it did not enter appearance within the time limited by law. However, it has accused the Claimant for executing court process on a non-existent entity.

Draft defence

The question arises as to whether the draft defence raises triable issues. We have perused the application and the annextures thereto. We note that a draft defence is not part of them. This is a crucial document which is meant to help the Tribunal ascertain the bonafides of an application for setting aside a default judgment. Failure to enclose it to the Application is fatal to the Application.

Be that as it may, and assuming that we were to rely on the grounds in support of the Application to make a determination as to the bona fides of the same, we find that the Respondent has not given any plausible reason as to why the default judgment should be set aside. It is not enough for the Respondent to allege that the Claimant has sued a non-existent entity. We take judicial notice that ‘Airtel Yes Sacco and Yes Sacco have a common relationship in that the former changed to the later. The Respondent can thus not be heard to be evading responsibility merely because of a misnomer in the manner in which it has been described.

Conclusion

The upshot of the foregoing is that we do not find merit in the Respondent’s Application dated 14. 1.2020 and hereby dismiss it with costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MARCH, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021

HON. JANE MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 3.2021

MR. P. GICHUKIMEMBER SIGNED 25. 3.2021

Mbuthia Advocate for Respondent

Okoth Advocate for Respondent

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021