[2021] KECPT 519 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.178 OF 2013

REBECCA MUENI KAVITI..............………….............…............…CLAIMANT

VERSUS

KWETU SACCO LIMITED .......................................................RESPONDENT

RULING

The matter for determination is the Notice of Motion Application dated 21. 9.2018, seeking the following prayers:

a.Spent

b.Spent

c.That the default judgment herein be set aside.

d.That the Respondent be given an extension of time within which to file its defence

e.That the Costs be in the cause.

The Application is based on the grounds on the face of the Application and a Supporting Affidavit of Dr. Stanley Kyelenzi deponed on 18. 9.2018.

The Application is opposed vide the grounds of opposition dated 9. 11. 2018 filed on 12. 11. 2018.

The parties were given directions on 30. 7.2020 to file written submissions in the matter and other matters in the series. There was a previous Application dated 2. 11. 2018 and a Preliminary Objection dated 16. 11. 2018. The Ruling in regards to the same was delivered on 18. 2.2021 forCTC. NO. 385/17, 387/17, 396/13, 400/13, 402/13, 579/13, 583/13 and 584/13. The herein therefore applies to 178/13, 384/17, 386/17, 381/17, 380/17, 383/17, 382/17, 378/17 and 379/17. In these matters the parties were directed to file written submissions on 26. 11. 2020.

The matter came up for compliance on 4. 3.2021 and by this date, only the Claimant’s written submissions were in the Tribunal file. The Respondents were ordered to file written submissions within 7 days from 4. 3.21 and at the time of writing the Ruling, the Respondent’s written submissions were still not on record. The Claimant filed written submissions on 15. 2.2021.

In this matter, we note that the suit was filed on 3. 5.2013 for refund of savings of the Claimant. Judgment was entered on 22. 8.2018. The instant Application was filed on 24. 9.2018.

The Application seeks to set aside the default judgment and give extension of time to file a defence. The Applicant in the Supporting Affidavit confirms that the Summons were duly served at their registered offices. That they only realized their non-action when the auctioneers went to make a proclamation. That they had misplaced the documents due to a mix up on their offices but the same were traced on 10. 9.2018. That the Claimant was still their member and wished to continue as a member.

The Claimant written submissions were that there were no grounds set out to blame the claimant. That the Claimant should not be punished for the mistakes of the Respondent. That after filing the Application, the Respondent obtained stay orders and never took steps to prosecute the same two years down the line.

We have carefully considered the pleadings of the parties. We note that the principles of setting aside a default judgment were set out in PITHON WAWERU MAINA VS THUKA MUGIRIA [1983] eKLR and MBOGO -VS- SHAH[1968] EA 93 & 95 is discretion where it was held that: “ the discretion is free and the main concern is to do justice to the parties.” The discretion is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error but it is not designed to assist a person who deliberately sought, whether by evasion or otherwise, to obstruct or delay the cause of justice.

Also in ONGOM VS OWOTA the court must be satisfied about one of the two things namely:

1. No proper service of summons

2. Failure to appear due to sufficient cause

In the matter, we will rely on the issue of service since this was a default summary judgment.

The Applicant confirms in their Supporting Affidavit deponed on 18. 9.2018 paragraph 3 that they were served with the summons to enter appearance. However, they did not act on the said summons until the auctioneers went to proclaim and in paragraph 6 they confirm to have found the documents on 10. 9.2018.

It is an established principle in Patel - vs- EA Cargo case (supra) that the court “ will not set aside judgment unless it is satisfied that there is a defence on the merits that is a defence which raises triable issues or a prima facie defence which should go to trial for adjudication.”

In this regard, sufficient cause must be demonstrated for the court to issue orders. In considering sufficient cause, the court must bear in mind the object of substantial justice to all the parties concerned without regard to technicalities of the law.

In the instant matter, the Applicant indeed received the summons and did not enter appearance or file a defence. In their Application, instead of attaching a draft defence to enable the Tribunal to determine whether the defence raises triable issues,the Applicant sought for extension of time to file a defence. Its trite law that the procedure in such matters is for parties to file a draft defence to enable the Tribunal to establish whether the same raises a prima facie defence. We note that this has not been done by the Applicant.

We also note that the Application was filed under Certificate of Urgency in September 2018 and stay of execution was granted in the first instance. Thereafter the Applicant did not bother to follow up on their Application, and indeed to date, they have never filed written submissions in the matter as ordered.

Setting aside is a matter of discretion upon sufficient cause being demonstrated. In this matter, there is no plausible reason that is demonstrative and persuasive for the Tribunal to exercise discretion in their favour to set aside the default summary judgment. No plausible reason has been demonstrated. Indeed a party who brings a matter under Certificate of Urgency has an obligation to ensure its expeditious disposal. The dictates of justice demand that any matter under Certificate of Urgency must be prosecuted expeditiously and with the same urgency as it was filed. The Tribunal cannot be at the beck and call of any indolent party who feels no obligation to proceed with a matter with expedition or to offer an explanation as to why an Application that is urgent, has not been prosecuted. The Respondent did not file any written submission and they continue to enjoy stay of execution orders for over 2 years now. This is a matter of refund of deposits and there was no justification for failure to enter appearance. There is no draft defence filed or any written submissions to persuade the Tribunal as to why the application should be granted.

We have noted the age of the matter and that the Claimant is entitled to the fruits of her judgment, the Respondent having been duly served with the summons, failing to enter appearance, failing to file a draft defence, failing to file written submissions , cannot blame anyone in the matter. The Claimant saved her money diligently in the Co-operative Society and the same should be refunded as per the judgment entered.

We therefore dismiss the Application dated 21. 9.2018 with costs.

These Orders to apply to CTC. NO. 178/13, 384/17, 386/17, 381/17, 380/17, 382/17, 378/17 and 379/2017.

The Claimant may proceed to the execution of the decretal amounts in the matters.

Ruling read, signed, dated and delivered virtually this 6thday of May, 2021.

Hon. B. Kimemia Chairperson Signed 6. 5.2021

Hon. M. Mwatsama Deputy Chairperson Signed 6. 5.2021

Mr. Gitonga Kamiti Member Signed 6. 5.2021

Mutunga Advocate for Claimant: Present

Matter is for Ruling.

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 6. 5.2021