[2021] KECPT 275 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.273 OF 2020

ROBERT NJAGI KIMOTHO.......................................................1ST CLAIMANT

LORNA MARGARET KARIUKI .................................................2ND CLAIMANT

VERSUS

COUNTY SACCO SOCIETY LIMITED ............................... 1ST RESPONDENT

RESTORERS CONSULT AUCTIONEERS...............................2ND RESPONDENT

RULING

1. The Application for determination is dated 16. 3.2021 which is brought under Order 10 Rule IV and II, Civil Procedure Rules 2010 Section 1A, 1B and 3A Civil Procedure Act Cap 21 and Order 12 Rule 2, 3 and 7 and Order 51 Civil Procedure Rule 2010.

The Application seeks for Orders of :

a. That this Application be certified urgent and the same be heard ex-parte in the first instance.

b. That this Honorable Court be pleased to set aside the judgment dated 12th March 2021 and all the Consequential Orders made against the complainant and grant leave to the complainant to defend the Respondent’s counter claim.

c. That the order or directions issued by this Honourable court on 11th march 2021 dismissing the complainant’s Application dated 4th September 2020 and the Statement of complainant dated 4th September, 2021 together with all other consequential Orders be reviewed, varied and/or set aside.

d. That the interim orders granted by Hon. B. Kimemia, Chairperson, Co-operatives Tribunal on 7th September, 2020 be reinstated and extended pending hearing and determination of the Application herein.

e. That this Honorable Court be pleased to order stay of execution against the Complainant in respect of the Judgment of the Court herein and all the Consequential Orders pending hearing and determination of this Application.

f. That this Honorable court be pleased to make such further orders as are necessary for the ends of justice to be served.

g. That the cost of the application be in the cause.

2. The same is founded on the grounds on the face of the Application and supported by the Affidavit of Robert Njagi Kimotho sworn on 16. 3.2021 and avers as follows:

That judgment was entered against the complainants herein on 12. 3.2021 which they seek to be set aside.

Their statement of complaint on 4th September 2020 which was filed with an Application which sought for injunction against the Respondent from attaching, proclaiming, auctioning and selling their property.

The main ground for the Application to be granted an injunction was that the property that had been proclaimed was matrimonial and did not form part of the collateral security for the loan and that the amounts claimed were exaggerated.

3. That on 18. 11. 2020 the Claimant’s Advocates requested for loan statements to be availed to them for sorting and the court ordered for statements to be supplied to them by 9. 12. 2020 when the case was to come up for pre- trial direction.

On 9. 12. 2020 the Claimant’s had not received the loan statements and court directed parties to comply with order II before the hearing that was slated for 11. 3.2021.

On 11. 3.2021 when his advocates logged into the virtual session they were unable to unmute to address court and her device had technical challenges and by the time she inquired of the outcome she was informed by the court clerk that the complainant’s Application had been dismissed and Respondent Counter Claim heard and determined and judgment was to be delivered on 12. 3.2021.

4. On 12. 3.2021 when she mentioned the same before the chairperson and made oral applications for the court to review its orders to reinstate the claimant’s suit and Application the court nevertheless delivered its judgment and allowed the Respondent’s counter claim dated 23. 9.2020 in its entirely.

The Applicant avers they have a good Defence to the counter claim and ought to be given an opportunity to be heard. The Applicant attached the Draft Defence to counter claim.

5. The Respondent filed a Replying Affidavit dated 15. 4.2021 sworn by Victor Joe Ireri the Chief Executive Officer and in response stated the 1st Applicant in March 2018 applied for a loan amounting to Kshs.4,500,000/= from the 1st Respondent.

On 16. 4.2018 he was granted a loan of Kshs.3,000,000/= and it was to be repaid at a rate of 18% and 5% penalty if late in repayment. The 2nd Applicant was his guarantor.

In the month of September 2018 the Applicant defaulted and thus the 1st Respondent instructed the 2nd Respondent to recover the outstanding loan which amounted to Kshs.3,487,556/= as at 7. 9.2020.

As a result of the execution the Applicant filed a Statement of Claim citing breach of contract on part of the 1st Respondent. On 18. 11. 2020 the Applicants were granted 14 days to file their response to the Counter Claim on 1. 12. 2020 the Respondent through their Advocates on record served the Applicants with the Applicants Statement of Account vide email. On 9. 12. 2020the parties appeared for Pre-trial and Applicants given more time to file their response to the Counter Claim and matter scheduled for hearing in Embu on 11. 3.2021.

6. On 11. 3.2021 when the matter was called out there was no representative for the Claimant/Applicant which led to the dismissal of the Applicant’s Application and Respondent counter claim heard and determined in favour of the Respondents.

The Applicants have not annexed a draft Defence to the counter claim but just provided grounds for their Defence and the same does not raise triable issues to establish a plausible Defence in light of the fact that the Applicant’s have admitted to the loan.

The Respondent state the Application is devoid of merit and thus Application had not demonstrated any just cause to warrant setting aside of the judgment delivered on 12. 3.2021.

7. The Applicant filed a Supplementary Affidavit in response to the Replying Affidavit and reiterated he has been servicing the loan and he has paid a tune of Kshs.2,500,000/= and denies the Kshs.3,487,556/= figure.

That they had indeed attached their draft Defence to the Application. The Applicant’s Advocate did not access the loan Statements Account hence unable to file the Defence to the Counter Claim. The court has not considered that the Respondent intended to auction the Claimant’s goods including household goods, herds of cattle and property which is part of his matrimonial properties and was not listed as collateral security for the loan. That if the Orders are not granted the Applicant will be subjected to irreparable harm and loss.

Submissions by the Applicant dated 27. 4. 2021 were filed on 28. 4.2021. 1st Respondent filed their written submissions dated 5. 5.2021 on 10. 5.2021.

8. Analysis

Having considered the Applicant’s case and Respondent Response and submissions the issue at hand are:

Issue one

Whether the judgment delivered on 12. 3.2021 should be set aside.

Issue two

Costs

Issue One:

Whether the judgment delivered on 12. 3.2021 should be set aside.

Order 12 Rule 3 Civil Procedure Rule provides for

(i) If on the day fixed for hearing after the suit has been called on for hearing outside the court, only the Defendant attends and he admits no part of the claim, the suit shall be dismissed except for good cause to be recorded by the court.

(ii) If the defendant has counter claim, he may prove his Counter Claim so far as the burden of proof lies on him.

Order 12 Rule 6 provides for dismissals of suits.

9. In the current case the matter was scheduled for hearing on 11. 3.2021 in Embu. All the parties were to have complied with the orders given on 9. 12. 2020.

The applicants did not file a response to the Counter Claim as directed and they allege they were waiting for Statement of Accounts from the 1st Respondent.

The 1st Respondent however stated the same were sent via email on 1. 12. 2020 a fact the Applicant’s herein not disputed. They have not denied or addressed the issue of email in their Supplementary Affidavit which would have clarified the issue at hand.

The Applicants have further not demonstrated action taken to follow up on the same even as the hearing date approached.

There was non-compliance from their end and they cannot be allowed to cry foul at this stage.

The hearing on 11. 3.2021 was scheduled in presence of both parties. The Tribunal hearings are physical unless otherwise directed. On the said date the Applicant/Claimant was not in court when the matter was called out if at all since the hearing would have proceeded.

10. The Respondents diligently attended the court session in Embu and their evidence taken and judgment delivered on 12. 1.2021.

For the Applicant to now claim technological hitches when the matter was to be heard physical cannot hold water.

Judgment was given after hearing the parties, that is 1st Respondent.

As much as the court has discretion to set aside judgment this is a classic case of the Claimant not being intent with their case especially having been filed under Certificate of Urgency and being given a hearing date.

The object of the discretion to set aside is to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice (Shah -vs- Mbogo) as upheld by court in Mbogo - vs- Shah [1968] EA 93.

11. The issue of the Draft Defence to the Counter Claim will not arise. If the draft had been done no reason is forwarded as to why the same was not filed in good time and later request for the Statement of Account.

Issue two:

Costs

Costs follow the event and as such the same are to be paid by the Claimant since they have not succeeded in their Application.

The upshot of the above is that:

The Application dated 16. 3.2021 is found to be without merit and as such dismissed with costs to be paid to 1st Respondent.

Ruling signed, dated and delivered virtually at Nairobi this 19thday of August,2021.

Hon. B. Kimemia Chairperson Signed 19. 8.2021

Hon. J. Mwatsama Deputy Chairperson Signed 19. 8.2021

Mr. Gitonga Kamiti Member Signed 19. 8.2021

Tribunal Clerk R. Leweri

Miss Wangui holding brief for Miss Wachira for 1st and 2nd Claimant

Miss Mutua holding brief for Kathungu for 1st Respondent

Hon. B. Kimemia Chairperson Signed 19. 8.2021