[2021] KECPT 13 (KLR)
The Tribunal found that although the respondents' explanation for failing to enter appearance and file a defence was weak and unconvincing, the dispute involved land, an emotive issue in Kenya, and the draft defence raised justiciable points. In the interest of justice and to allow the matter to be determined on its...
Source-derived case information.
- Citation
- [2021] KECPT 13 (KLR)
- Parties
- Applicant: Rael Wakei Muasya alias Rael Syombua Mutuku; Respondent: Mathew Muli Mutunga; Respondent: Simon Sila Mutunga
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E62 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- Application to set aside ex parte judgment allowed; matter to proceed to full trial.
- Legal Topics
- Setting Aside Ex Parte Judgment, Default of Appearance, Draft Defence, Throw Away Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Wakei Muasya alias Rael Syombua Mutuku
Applicant
Mathew Muli Mutunga
Respondent
Simon Sila Mutunga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered against the respondents should be set aside.
- 2 Whether the respondents have demonstrated sufficient cause to warrant setting aside the judgment.
- 3 Whether the respondents have a triable defence on record.
Ratio Decidendi
The Tribunal found that although the respondents' explanation for failing to enter appearance and file a defence was weak and unconvincing, the dispute involved land, an emotive issue in Kenya, and the draft defence raised justiciable points. In the interest of justice and to allow the matter to be determined on its merits, the Tribunal exercised its discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside the ex parte judgment. The respondents were ordered to pay throw-away costs to the claimant for their indolence, and the matter was directed to proceed to full trial.
Court Disposition
Application to set aside ex parte judgment allowed; matter to proceed to full trial.
Orders
- The respondents’ application dated 28th May 2021 is allowed.
- The respondents to file and serve their defence, witness statements and list of documents within 7 days.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. E62 OF 2021
RAEL WAKEI MUASYA alias RAEL SYOMBUA MUTUKU.....................................CLAIMANT
VERSUS
MATHEW MULI MUTUNGA.............................................................................1ST RESPONDENT
SIMON SILA MUTUNGA...................................................................................2ND RESPONDENT
RULING
1. The Respondent has filed A Notice of Motion Application dated 28th May 2021,seeking orders to set aside the Orders made by this Tribunal on 28th April, 2021, and all consequential orders thereto. The facts are that the Respondents neither enter appearance, nor filed a Defence even though they were procedurally served with Summons to Enter Appearance.
2. The Respondents have annexed a Draft Defence and appurtenant documents to demonstrate that they do have a triable case. The Respondents cite poverty and lack of legal fees as the reason why they ignored their duty to defend themselves, and were only spurred into action when they discovered Judgment had been entered against them and execution was imminent.
3. Even though we find the reason preferred lame, shallow and implausible, we note that the dispute relates to land, which is an emotive subject in Kenya. We have looked at the Draft Defence and we find that it raises justiciable points, which makes it necessary for this Tribunal to tamper with its erstwhile Judgment.
4. This Tribunal thus invokes the provisions of Order 10 Rule 11 of the Civil Procedure Rules 2010which provide as follows:
“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.”
5. We therefore give the Respondents the benefit of doubt, and hereby set aside our Ruling of ex parte Judgment in Default of Appearance. In the interest of justice, we find that the Orders sought should be granted and the Application dated 28th May 2021 be allowed. However, the Respondents are to pay throw-away costs for their indolence.
We direct that the Claim proceeds to full trial to ascertain the merits of the case.
ORDERS
We therefore Order as follows:
(a)The Respondents’ Applications dated 28th May 2021 be and is hereby allowed;
(b)The Respondents to file and serve their Defence, witness statements and list of documents within 7 days from the date hereof;
(c)The Claimant is granted leave to file and serve a supplementary list of documents and witness statements within 7 days from the date of service;
(d)The Respondents to pay throw-away costs of Kshs. 5,000/= to the Claimant before the next Mention date;
(e)Parties to ensure strict compliance of Order 11 of the Civil Procedure Rules within 30 days hereof;
(f)Costs be in the Cause;
(g)Mention for directions on 2. 12. 2021.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.
Hon. B. Kimemia Chairperson Signed 7. 10. 2021
Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021
Mr. P. Gichuki Member Signed 7. 10. 2021
Mr. B. Akusala Member Signed 7. 10. 2021
Tribunal Clerk R. Leweri
Ms. Nzau for the Claimant
No appearance for the Respondents.
Hon. J. Mwatsama Deputy Chairperson Signed 7. 10. 2021