[2023] KECPT 457 (KLR)
The Tribunal found that the applicant was properly served with the statement of claim, summons to enter appearance, and ex-parte judgment, making the judgment regular. The applicant acknowledged service but failed to act promptly or contact his advocate. The Tribunal reviewed the grounds and draft defence submitted...
Source-derived case information.
- Citation
- [2023] KECPT 457 (KLR)
- Parties
- Applicant: Shoppers Sacco Society Ltd; Respondent: Charles Kisilu
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case E251 (433) of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application dismissed
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Setting Aside Ex Parte Judgment, Regular Vs Irregular Judgment, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shoppers Sacco Society Ltd
Applicant
Charles Kisilu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex-parte judgment entered on January 31, 2022 should be set aside.
- 2 Whether the applicant was properly served with the statement of claim and summons to enter appearance.
- 3 Whether the draft defence raises any triable issues warranting the setting aside of the summary judgment.
Ratio Decidendi
The Tribunal found that the applicant was properly served with the statement of claim, summons to enter appearance, and ex-parte judgment, making the judgment regular. The applicant acknowledged service but failed to act promptly or contact his advocate. The Tribunal reviewed the grounds and draft defence submitted by the applicant and determined that no triable issues were raised to warrant setting aside the summary judgment. Accordingly, the Tribunal exercised its discretion to dismiss the application, finding it without merit and awarding costs to the claimant.
Court Disposition
application dismissed
Orders
- The application dated July 22, 2022 is dismissed.
- Costs awarded to the claimant.
Full Case Text
Judgment text and source record
23 paragraphs
Shoppers Sacco Society Ltd v Kisilu (Tribunal Case E251 (433) of 2021) [2023] KECPT 457 (KLR) (27 April 2023) (Ruling)
Neutral citation: [2023] KECPT 457 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case E251 (433) of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
April 27, 2023
Between
Shoppers Sacco Society Ltd
Claimant
and
Charles Kisilu
Respondent
Ruling
1. The Respondent/ Applicant vide a Notice of Motion Application dated July 22, 2022 sought orders to set aside ex-parte judgment, Stay of Execution of the Decree and Leave to file a Response/Defence. The orders sought are:a.Spentb.That upon hearing this Application ex-parte, this Honourable court be and is hereby pleased to issue an order of stay of execution of the decree herein pending the hearing of this Application inter-parties.c.That upon hearing this Application inter-parties , this Honourable Court be and is hereby pleased to issue an order of stay of execution of the decree herein pending the hearing and determination of this application.d.That this Honourable Court be pleased to set aside the ex-parte judgment entered on January 31, 2022. e.That this Honourable Court be pleased to grant me a leave to file my Response to claim and the annexed Draft Response be deemed as duly filed upon payment of the requisite filing fees.f.That the costs of this Application be provided for.
2. That the Respondent/Applicant have not denied that he was granted a loan of Kshs 720,000 by the Claimant/Respondent (paragraph 8 of the Supporting Affidavit).
3. That on the mention date of November 28, 2022 this Tribunal granted the parties 14 days to negotiate and agree on the payment proposal which answers the claim of being condemned unheard.
4. That the Applicant/Respondent was served with a Statement of Claim on October 28, 2021, summons to enter appearance on October 27, 2021 and an ex-parte judgment on January 31, 2022. During all this time the Respondent/Claimant’s conscience was not choked.
5. That upto the time the Applicant/Respondent was served with the orders, he took his cool time to take action, leave alone contact his previous advocate to know the progress of the matter.
6. That by virtue of acknowledgment of service of the ex-parte judgment, the Tribunal considers this is a regular judgment. This is buttressed in the case of Mwala V Kenya Bureau of Standards EA LR (2001)/EA 148 where the court stated thus:'To all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the Judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the Judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or Defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular Judgment on its record.'
7. On the same note the Tribunal has read and considered the grounds adduced by the Respondent/Applicant to set aside the ex-parte judgment and the subsequent orders which does not raise triable issues.The attached Draft Defence does not raise any triable issues to warrant the Summary Judgment to be vacated.
8. Given the facts so stated the Tribunal dismisses the Application dated July 22, 2022 as is found to be without merit. Costs to the Claimant.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOI MEMBER SIGNED 27. 4.2023TRIBUNAL CLERK JEMIMAH/JONAH