[2025] KECPT 91 (KLR)

Rachuonyo Teachers Sacco Society Limited v Magak (Tribunal Case 219/E331 of 2023) [2025] KECPT 91 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 91 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 219/E331 of 2023

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

January 30, 2025

Between

Rachuonyo Teachers Sacco Society Limited

Claimant

and

Joseph Magak

Respondent

Ruling

Notice of Motion Application 1. The Notice of Motion Application dated May 20, 2024 is brought under Order 36 Rule (1), Order 2 Rule 15(b) of the Civil Procedure Rules 2010, Section 1A, 1B and 3(a) of the Civil Procedure Act, Section 75 of the Co-operative Societies Act (No 12 of 1997) seeking among others Orders:a.That the Respondent’s Statement of Defence dated 3rd July, 2023 be struck outb.That the Honorable Tribunal be pleased to enter summary judgment for the Claimant against the Respondent as prayed for in the Statement of Claim plus costs and interestc.That the defendant to pay the cost of the Applicationd.That the Honorable Tribunal be pleased to issue any other relief that it may deem fit

2. The Application was supported by the annexed Affidavit of Isaiah Owino Opere on the grounds that:i.There were complaints from members of the Claimant’s Society which necessitated the Commissioner for Cooperative Development to institute inquiry in accordance with Section 58 of the Co-operative Societies Act (No 12 of 1997)ii.The inquiry was done vide an inquiry order dated 28th August, 2017, and that a report was prepared and read to the members of the Claimant’s Society on 16th June 2018 in a Special General Meetingiii.Following the findings of the inquiry, the Commissioner issued to the Respondent a Notice of Intention to Surcharge dated 5th November 2018 surcharging the Respondent for an amount of Kshs 230, 902. 65/= and subsequently the Respondent was surcharged Kshs 230, 902. 65/= as per the surcharge order dated 7th May 2019iv.The Respondent had the opportunity to raise his views or objections to the Commissioner and or to the Honourable Tribunal if at all he was aggrieved by the recommendations contained in the inquiry reportv.That the respondent was duly served with the subject order but refused or neglected or ignored to pay the claimant the seed sums that there has never been a previous or pending or determined appeal before the honorable tribunal filed by the respondent cell phone which was dismissed on technicalitiesvi.That the Respondent owes the Claimant the sum of Kshs 230, 902. 65/= as pleaded in the Statement of Claim and was so indebted after the commencement of the claim and it is only fair and in the interest of justice that summary judgment be entered against the respondent as prayedvii.That the Respondent’s Statement of Defence is a sham and consists of mere denials of the Claimant’s Claim and as such outrightly scandalous, frivolous vexatious, unintelligible and otherwise an abuse of the Honorable Tribunal processviii.That the Respondent is truly indebted to the Claimant in the stated sum of Kshs 230, 902. 65/= and the Statement of Defence offends both the procedural law and substantive law.

3. On 15th July, 2024 this Tribunal gave directions for the Application to be served on all the parties, with further directions given on 14th August, 2024 for the Respondent to file his response to the Application.

4. On 16th September, 2024 this Tribunal gave further Orders for the Respondent to be served personally and as at the date of writing this ruling, the Respondent was yet to file and serve their response.Has the threshold for striking out the Statement of Defence been met?This Application is brought under Order 2 Rule 15 of the Civil Procedure Rules which provides as follows: -“15. (1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)It discloses no reasonable cause of action or Defence in law; or(b)It is scandalous, frivolous or vexatious; or(c)It may prejudice, embarrass or delay the fair trial of the action; or(d)It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”The principles for striking out of pleadings were well set out in D T Dobie & Company (K) Ltd v Muchina [1982] KLR 1 to the effect that no suit ought to be summarily dismissed unless it appears so hopeless, it discloses no reasonable cause of action and is so weak as to be beyond redemption even through an amendment.

5. The Court of Appeal in the case of Blue Shield Insurance Company Ltd v Joseph Mboya Oguttu [2009] eKLR restated those principles as follows:“The principles guiding the Court when considering such an application which seeks striking out of a pleading is now well settled. Madan J.A. (as he then was) in his judgment in the case of D.T. Dobie and Company (Kenya) Ltd v Muchina (1982) KLR 1 discussed the issue at length and although what was before him was an application under Order 6 rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause of action against the defendant, he nonetheless dealt with broad principles which in effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:-“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.”We too would not express our opinion on certain aspects of the matter before us. In that judgment, the learned Judge quoted Dankwerts L.J in the case of Cail Zeiss Stiftung v Ranjuer & Keeler Ltd and others (No 3) (1970) ChpD 506, where the Lord Justice said: -“The power to strike out any pleading or any part of a pleading under this rule is not mandatory; but permissive and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending pleading.”We may add that like Madan J.A, said, the power to strike out a pleading which ends in driving a party from the judgment seat should be used very sparingly and only in cases where the pleading is shown to be clearly untenable.”

6. This Honorable Tribunal has considered all factors and circumstances relating to this case, including the conduct of the Respondent in not taking any opportunity to respond to the Intention to surcharge, appeal the surcharge before this Honorable Tribunal, or offer a response to the Application to Strike out his Statement of Defence. It is our considered opinion that justice delayed is equal to justice denied and having looked at the Statement of Defence dated 3rd July, 2023 we are persuaded that either the Respondent is not keen on defending the Claim or is keen on delaying the determination of this suit – if it is really true that the Annual General Meeting was chaotic and he was not accorded his natural justice rights to a fair hearing, this Honorable Tribunal give him the opportunity to respond after the Commissioner gave him the same opportunity to, and he hasn't for reasons best known to him.

Final Orders:i.The Notice of Motion Application dated May 20, 2024 succeeds and summary judgement is entered in favor of the Claimant against the Respondent for the sum of Kshs 230, 902. 65/= plus costs and interest at Tribunal rates.ii.The Statement of Defence dated July 3, 2023 is struck out.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 1.2025HON. PAUL AOL MEMBER SIGNED 30. 1.2025Tribunal Clerk MutaiAriga advocate for the Claimant- PresentKopot advocate holding brief for Dima Advocate for RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025