[2023] KECPT 734 (KLR)

Shoppers Sacco Society Ltd v Kiprotich (Tribunal Case 474 /E284 of 2021) [2023] KECPT 734 (KLR) (24 August 2023) (Ruling)

Neutral citation: [2023] KECPT 734 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 474 /E284 of 2021

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

August 24, 2023

Between

Shoppers Sacco Society Ltd

Plaintiff

and

Erick Kiprotich

Defendant

Ruling

1. The matter for determination is an Application dated 17. 10. 2022 filed on 18. 10. 2022, under Section 3, 3a and 63(c) of the Civil Procedure Act, Order 10 Rule 11, Order 51 Rule 1 of the Civil Procedure Rules. The applicant sought the following orders1. Spent.2. Stay of execution of decree against the defendant pending determination of the application.3. That the court be pleased to set aside the ex-parte judgement dated 2nd February 2022 and the applicant be given unconditional leave to defend the suit.4. Costs.

2. The Application is based on the grounds that an ex-parte irregular judgement was entered against the applicant on 31. 01. 2022, and a decree passed on 02. 02. 2022. That, the applicant became aware of the matter during his arrest and was served with the proceedings and the decree on 14. 09. 2022 in Nakuru. The Applicant claimed to never have been served with summons to enter appearance and the plaint regarding the matter. The Applicant also claimed to have a defense that raises triable issues. The applicant also attached their Statement of Defense.

3. The Claimants the Respondent in this Application, fled written submissions dated 30. 05. 2023, and a Replying Affidavit dated 25. 01. 2023, in response to the Application. The Respondents claimed to have duly served the Applicant with the plaint and summons to enter appearance as per an annexed affidavit of service marked AM-1.

Issues for determination. a. Whether the defendant was served? 4. An affidavit of Service produced by the Respondent marked as AM-1, sworn by Elvis Muthoka, an authorized court server, dated 23. 12. 2021; shows that the server received copies of the summons and plaint of this suit on 29. 10. 2021 from the Respondent. Upon reception of the documents, he on 15. 12. 2021 at 1:25 P.M, served Mr. Erick Kiprotich, the applicant. From the affidavit, we see that Applicant was served in person.

5. In Shadrack Arap Baiywo v Bodi Bach KSM CA Civil Appeal No. 122 of 1986 [1987] eKLR, the Court of Appeal quoting Chitaley and Annaji Rao; The Code of Civil Procedure Volume II page 1670 stated that:There is a presumption of service as stated in the process server's report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the Process Server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings.

6. The Applicant does not provide any evidence to challenge the Affidavit of the Process Server. Therefore the Applicant was sufficiently served.

b. Whether leave to file a memorandum of appearance and a defense should be granted? 7. The Applicant claimed to not have been served and so he was not able to file a Memorandum of Appearance and a Defence. But, from issue (a) above, it is clear that he was served. He also filed their Defence together with the Application. Upon perusal, of the Defence, the Defence doesn’t raise any triable issues. It is merely denial. The Applicant denied even being served with any demand notices of the alleged sum. A demand letter dates 14. 10. 2021, annexed by the respondents proves the contrary.

8. In the case of Saudi Arabian Airlines Corporation v. Sean Express Services Limited, Civil Case No. 79 of 2013 [2014] eKLR, it was stated that;A triable issue need not be one which will succeed but one that passes the Sheridan J Test in Patel v E.A. Cargo Handling Services LTD. [1974] EA 75 at P. 76 (Duffus P.) that“.... a triable issue .... is an issue which raises a prima facie defense and which should go to trial for adjudication.” Therefore, upon looking at the defense, it raises bona fide triable issues worth a trial by the court."

9. The Court of Appeal observed in James Kanyiita Nderitu & Another [2016] eKLR, there is little option for a court but to set aside such a judgment. The Court stated:In a regular default judgement, the defendant will have been duly served with summons to enter appearance or to file defense, resulting in default judgment. Such a defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default judgment, and will take into account such factors as the reason for failure of the defendant to file his memorandum of appearance or Defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended Defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default judgment”.

10. It has been established that the applicant was duly served and hence, aware of the suit.

11. Although the applicant was negligent with defending the suit, his defense does not raise triable issues, and that the applicant took too long to act on the matter even after service of the Decree and the Notice to Show Cause, as proved by annexes AM-2 and AM-3 respectively. He waited until he was arrested.

c. Whether a stay of execution should be granted? 12. After consideration of issue (a), and (b) above; relying on the precedent Jomo Kenyatta University of Agriculture and Technology v Musa Ezekiel Oebal (2014) eKLR, the Court stated that the purpose of clothing the court with discretion to set aside ex-parte judgment is:“To avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a person who has deliberately sought (whether by evasion or otherwise) to obstruct or delay the cause of justice...”

13. The Applicant, without a Defence that raises triable issues, sought to stay of execution of the Decree against him, when he was being arrested in execution of the Decree. It is clear that the applicant is deliberately trying to delay justice to the Claimant. It would therefore, not be just to the Claimant, to allow the Application.

Upshot 14. The Draft Defence raises no triable issues, therefore, the Application dated 17. 10. 22 is found to be without merit and is dismissed with costs to the Claimant/Respondent in the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 24TH DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON - SIGNED - 24. 8.2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 24. 8.2023HON. BEATRICE SAWE - MEMBER - SIGNED - 24. 8.2023HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 24. 8.2023HON. PHILIP GICHUKI - MEMBER - SIGNED - 24. 8.2023HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 24. 8.2023HON. PAUL AOL - MEMBER - SIGNED - 24. 8.2023TRIBINAL CLERK - JEMIMAHHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED -31. 8.2023