[2024] KECPT 1527 (KLR)

Shoppers Sacco Society Limited v Mwaura (Tribunal Case 391 (E384) of 2023) [2024] KECPT 1527 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1527 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 391 (E384) of 2023

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

September 26, 2024

Between

Shoppers Sacco Society Limited

Claimant

and

Caroline Nyambura Mwaura

Respondent

Ruling

1. For determination by this Tribunal is a Notice of Motion Application dated 30th January, 2024 which was filed by the Respondent/Applicant seeking the following orders:1. That the Summary Judgement entered against the Respondent condemning her to pay Kshs. 1,345,965. 71 plus cost and interest be set aside.2. That there be orders of stay of execution of the judgement entered on 11/1/2024 pending hearing and determination of this Application.3. That the Tribunal to place on record the Respondent’s Statement of Defence, List of Witnesses, Witness Statement, List of Documents all dated 25/9/2023 and list the matter for pretrial and full hearing.4. Cost of this Application be provided for.

2. The above Application is anchored under article 50(1) of the Constitution of Kenya, Section 1A, 1B, 3A and 63(e) of the Civil Procedure Act Cap 24, order 10 Rule 11 and order 51 Rule 1 and 15 of the Civil Procedure Rules 2010. On the same context, the Respondent stated that she filed a Memorandum of Appearance on 29/8/2023 and a Statement of Defence dated 25/9/2023 via the Tribunal’s e-filing portal.Accordingly, the system that the documents were filed in the Tribunal and so she proceeded to serve the same upon the Claimants.

3. However, she received a message via the judiciary platform on 30/1/2024 that a Summary Judgement had been entered against her on 11/1/2024 in which she was required to pay Kshs. 1,345,965. 71/= plus costs and interest to the Claimants yet she had filed her Defence.

4. The Summary judgement was precipitated by the fact that the Claimants had earlier served the Respondent with the Claimant’s statement of Claim together with the annexures as per as Affidavit of Service Application dated 15/8/2023 which was sworn by Elvis Muthoka a Court Process Server and filed on 28/10/2023.

5. Failure by the Respondent to file and serve a Defence and Supporting Documents made the Claimants to file for request for judgement Application on 25/9/2023 which is coincided with the same date that the Respondent stated that she filed her Statement of Defence via e-filing portal.

6. Among other grounds that the Respondent prepared as her Defence, two (2) of them stand out distinctively:First, under paragraph 4, she stated that she obtained her loan from Naku Sacco Society Limited and not from the Respondents.Secondly, under paragraph 5, she tabulated how the Loan was repaid leaving a balance of Kshs. 620,247. 43/=.

Analysis. 7. Upon reading of the Respondent/Applicant and the Claimant/Respondent’s filed documents on record, we find that three(3) issues call for our determination.a.Whether the Summary Judgement entered against the Respondent/Applicant to pay Kshs. 1,345,965. 71/= plus cost and interest can be set aside?b.Whether orders for stay of execution of the judgement entered on 11/1/2024 can be granted.c.Whether the cost of this Application can be provided.

Issue 1 Whether the Summary Judgement entered against the Respondent/Applicant to pay Kshs. 1,345,965. 71 plus cost and interest can be set aside? 8. First, it should not be lost to the parties that the Tribunal entered into a Summary judgement upon an Application by the Claimant/Respondent dated 25/9/2023 for the reason that the Respondent had failed to enter appearance or file a Defence within the stipulated time.The Respondent/Applicant in an answer to the above stated under paragraph 1 on the grounds of the Notice of Motion dated 30/1/2024 that she filed Memorandum of Appearance on 29/8/2023 and her statement of Defence on 25/9/2023 through the Tribunal’s e-filing portal.

9. On the same, the Claimant/Respondent clearly stated under paragraph 5 of her replying Affidavit that the Respondent might have served them through a wrong email and blamed the respondent’s advocate for failure to serve them physically.

10. The Respondent/Claimant re-filed her statement of Defence and we have gone through it and form an opinion that it raises triable issues.This is in consonance with a decision in the case of Kimani vs. Mc Conmell (1966) E.A. 545 where the Court held that “Where a regular judgement has been entered, the court will not usually set aside judgement unless it is satisfied that the Defence raises triable issues.”Further, in the case of Kenya Commercial Bank Ltd vs Nyantange and another (1990) KLR, the Court ruled that “Order 11 A Rule 10 of the Civil Procedure Ruled 2010 donate discretionary power to the court to set aside or vary an ex-parte judgement entered in default of appearance or Defence and any Consequential Decree or order upon such terms are just.”

11. The Tribunal is alive to the fact that its main concern is to render justice to the parties and because the Respondent/Claimant was not heard on merit.In her Defence, the Respondent/Claimant provides several grounds which seem to have high prospect of her defending the Claim successfully.

12. With this finding, the Tribunal therefore gives a chance to the Respondent/Claimant by setting aside the Summary Judgement entered against the Respondent/Claimant to pay Kshs. 1,345,965. 71/= plus cost and interest.

Issue 2. Whether orders for stay of execution of judgment entered on 11/1/2024 can be granted? 13. The Respondent/Claimant was spurred with action when she received a message from judiciary that a Summary Judgement had been entered against her in the instant matter. That execution was imminent if she did not seek for a stay.

14. A cursory look at the Loan Application from which was filled and signed by the Respondent, it shows that she borrowed a Loan of Kshs. 1,500,000/= from Naku Sacco Society Ltd and the Claimants/Respondent on record is in this matter in the name of Shoppers Sacco Society Limited. The Claimant did not file a Certificate of change of name and therefore stay of execution of the judgement would be the best option in order to allow the Claimant/Respondent to make clarifications on several issues.

15. More importantly, the Respondent/Claimant in her Defence, stated that she made payments to Naku Sacco Limited as an employee of Nakumatt holdings Ltd through check-off system. Given that the Claimant’s name is different from the one indicated in the Loan Application form, we find that this raises confusion that merits the granting of stay of execution of the orders and all the Consequential Orders contained in the Summary judgement dated 11/1/2024. As such, we hereby grant the stay of execution and direct that the Claim proceeds to full trial to ascertain the merits of the case.

Issue 3. Whether the cost of this Application can be provided? 16. The Respondent/Claimant in this instant case has persuaded the Tribunal that it is in the interest of justice that she be given an opportunity to be heard on merit. Given that her Application is merited, she is entitled to the costs.

Conclusion.It is our considered view that the Notice of Motion Application 30/1/2024 is merited and order as follows:a.That the Summary Judgement entered on 11/1/2024 against the Respondent to pay Kshs. 1,345,965. 71 is hereby set aside.b.That the execution of all the orders contained in the Summary Judgement entered on 11/1/2024 is hereby stayed pending full hearing of the matter.c.Respondent to file and serve pleadings 14 days from today. Costs be in the cause.d.Mention date for further direction 21/1/2025

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk JemimahMs. Murugi advocate holding brief for Mr. Njue for the Respondent/Applicant.Shoppers Sacco- No appearanceMention for Pre-trial directions on 21. 1.2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024