[2021] KECPT 260 (KLR)
The tribunal found that the respondent's defence consisted only of bare denials and did not raise any triable issues. The only issue raised was the non-refundable share capital of Kshs. 20,500/=. The respondent failed to file any documents to show the claimant had liabilities such as guarantorship or loans. The...
Source-derived case information.
- Citation
- [2021] KECPT 260 (KLR)
- Parties
- Applicant: Rosemary Kemunto Obuya; Respondent: National Hospital Insurance Fund Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 444 of 2020
- Procedural Posture
- Summary Judgment Application / Ruling on Application to Strike Out Defence and Enter Summary Judgment
- Outcome
- application allowed; summary judgment entered for applicant
- Legal Topics
- Summary Judgment, Striking Out Pleadings, Triable Issues, Refund of Contributions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Kemunto Obuya
Applicant
National Hospital Insurance Fund Sacco Society Limited
Respondent
Procedural Posture
Summary Judgment Application / Ruling on Application to Strike Out Defence and Enter Summary Judgment
Legal Issues
- 1 Whether the respondent's defence raises any triable issues.
- 2 Whether the applicant is entitled to summary judgment for the claimed amount.
Ratio Decidendi
The tribunal found that the respondent's defence consisted only of bare denials and did not raise any triable issues. The only issue raised was the non-refundable share capital of Kshs. 20,500/=. The respondent failed to file any documents to show the claimant had liabilities such as guarantorship or loans. The tribunal held that the defence amounted to a mere denial and, given the admissions in the pleadings and lack of substantive defence, the applicant was entitled to summary judgment for the amount claimed less the non-refundable share capital. The application to strike out the defence and enter summary judgment was therefore allowed.
Court Disposition
application allowed; summary judgment entered for applicant
Orders
- Judgment is entered in favour of the claimant against the respondent for Kshs. 504,000 less Kshs. 20,500, totaling Kshs. 483,500, plus costs and interest from the date of entry of judgment/ruling.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.444 OF 2020
ROSEMARY KEMUNTO OBUYA.................................CLAIMANT
VERSUS
NATIONAL HOSPITAL INSURANCE FUND
SACCO SOCIETY LIMITED..................................RESPONDENT
RULING
1. The Application for determination is dated 8. 4.2021 which seeks to strike out the Respondent’s defence dated 30. 11. 2020 and order for Summary Judgment.
The Application is brought under Section 1A, 1B and 3A Civil Procedure Act Cap 21 and Order 51 Rule 1 Civil Procedure Rules, Order 36 Rule (1) (1)and all other enabling provisions of the law.
The Application seeks for the following Orders:
a. That this Honorable court be pleased to strike out the Respondent’s defence herein dated 30th November 2020 and order that judgment be entered in favour of the Claimant against the Respondent as prayed for in the Statement of Claim plus costs and interest thereof.
b. That the Respondent to pay costs of this Application.
c. That the Honourable court be pleased to issue any other relief that it may deem fit.
2. The same is premised on the grounds on the face of the Application to wit the Applicant avers that Respondent is indebted to Claimant.
That the Respondent has no reasonable defence to the suit and their defence dated 30. 11. 2020 in particular paragraph 3 is scandalous, frivolous, vexatious, unintelligible and sham aimed at delaying judgment and fair determination of the suit.
The Application is supported by the Affidavit of Roslyne Kemunto Obuyasworn on 8. 4.2021 who stated that her case is plain and obvious and is entitled for the court’s discretion to be used in their favour.
That the Respondent has not denied the fact that she made contributions until withdrawing of her membership in January 2019.
3. The Respondents opposed the application by filing a Replying Affidavit sworn by Sophy Otiu on 14. 6.2021 and filed on 15. 6.2021.
In it the Respondent stated their defence is in no way scandalous, frivolous, vexatious or unintelligible.
The defence raised ought to be heard on merit at trial.
The parties were directed to file written submissions and Applicant filed their written submissions dated 5. 7.2021 on 9. 7.2021.
4. Analysis
Order 13 Rule 2 Civil Procedure Rules 2010 clearly state
“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties ; and the court may upon such application make such order, or give such judgment, as the court may think just. “
The Claimant/ Applicant submits that the Respondent in paragraph 3 of their defence admits that the Claimant shares are Kshs. 504,000/= less share membership capital of Kshs. 20,500/=. They stated the case should be determined summarily.
The Respondent on the other hand submitted the law governing striking out of pleadings is founded in Order 2 Rule 15 Civil Procedure Rules 2010which states :
“ (1) at any stage of the proceedings the court may order to be struck out or amended any pleading on the grounds 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;”
They stated the Claimant seeks for Kshs. 504,000/= which is disputed however, the Respondent did not plead any liabilities against the Claimant.
This is a matter for refund, and it’s clear that the Claimant was making contributions as per the Statement of Account.
The issues to be determined are:
Issue One:
Does the defence raise triable issues?
ISSUE ONE
A cursory perusal of the Respondent’s defence shows a defence that is purely full of denials. By that fact alone they offer nothing else but a defence for the Respondent.
The principle that guide the court in determining whether to strike out a pleading were set out in the case of :
“ DT Dobie & company (Kenya) Limited – vs- Joseph Mbaria Muchina and Another CA 37 of 1978 [1980]eKLR.
Madan JA stated:
“...the court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable case of action on being otherwise an abuse of the process of the court.....”
The case by Respondent in their submissions
Transcend Media Group Limited - vs- IEBC[2015] eKLR court held:
“... striking out of a case and in the process, deprive a party of the opportunity to present their case has been held over and over the years to be a draconian measure which ought to be eyed only as a last resort and even the only in the clearest of case.”
We note that this is a clear case where the Claimant made monthly contributions which are now claimed and due. The Respondent did not file any written submissions in the matter as ordered on 3. 5.2021 and 16. 6.2021. The only issue raised in the defence is the deductible amounts (non-refundable) Kshs.20,500/=.
The Respondent did not file any documents with the Replying Affidavit to show that the Claimant has any liabilities in terms of guarantorship or loans. The defence therefore amounts to a mere denial and the only issue raised is the non- refundable amount of Kshs.20,500/= .
We therefore allow the Application dated 30. 11. 2020 in the following terms:
1. Judgment is entered in favour of the Claimant against the Respondent for Kshs.504,000/= less Kshs.20,500/= total Kshs. 483,500/= plus costs and interest in the suit from the date of entry of judgment/Ruling .
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.
Hon. B. Kimemia Chairperson Signed 29. 7.2021
Hon. J. Mwatsama Deputy Chairperson Signed 29. 7.2021
Mr. Gitonga Kamiti Member Signed 29. 7.2021
Tribunal Clerk Charles Maina
Omangi Gichane holding brief for Miss Makori for Respondent: Present
Miss Kemunto for Claimant: Present
Hon. B. Kimemia Chairperson Signed 29. 7.2021