[2025] KECPT 335 (KLR)

Shoppers Sacco Society Ltd v Maina (Tribunal Case 393/E383 of 2023) [2025] KECPT 335 (KLR) (26 June 2025) (Ruling)

Neutral citation: [2025] KECPT 335 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 393/E383 of 2023

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

June 26, 2025

Between

Shoppers Sacco Society Ltd

Claimant

and

Michael Mbugua Maina

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 14th November 2024 supported by an affidavit sworn by Michael Mbugua Maina, the Respondent herein, and brought under Sections 1A, 3A, & 95 of the Civil Procedure Rules 2010 and all other enabling provisions of the law. The application seeks the following orders:1. Spent2. Spent3. That the Honourable tribunal be pleased to set aside the summary judgment delivered on 11th January 2024 and consequential orders made by this Honourable tribunal on 13th November 2024. 4.That the matter be heard a fresh on merit by re-opening the claimant/Respondent’s case and recall the claimant/Respondent’s witnesses and the respondent/applicant be granted leave to file their response.5. Costs of this application be provided for.

2. The application is premised on the grounds on its face which are inter alia that: The Tribunal upheld an irregular judgement on 13th November 2024 as the Respondent only became aware of the present claim on 13th November 2014. That he had not been served with anything else until he was served with a mention notice on 9th November 2024 for a mention on 13th November 2024. That on 13th November 2024 when the matter came up for a mention, the Applicant was present before the Tribunal but was unable to address the Tribunal due to internet connectivity issues, and he later found out that the summary judgement entered on 11th January 2024 had been upheld.

3. The Respondent/Claimant filed their response on 15th January 2025. In their response they aver that the Applicant has deliberately refused to settle the judgement sum. That the Respondent is being dishonest since he was served o 25th November 2023 via WhatsApp on his mobile phone number 0725972929, and that after the service above, the Applicant came to the Claimant’s office and made a verbal commitment to pay in instalments but he failed to honour his words.

4. The application was canvassed via written submissions and both parties filed their submissions.

5. In their submissions, the Applicant informed this court that the summary judgement entered is irregular since the Applicant did not appear. He informed the court that Summary judgement should only be entered when the defendant has entered appearance but has not filed a Statement of Defence, and that in this case the Defendant did not enter appearance at all. he also urges this court to exercise its discretionary powers to set aside the summary judgement.

6. The Claimant/Respondent, on the other hand, urges this court to dismiss the Applicants application dated 14th November 2024. They submit that the Applicant was aware of the proceedings and would get in touch with the process server every time he was served.

Issues For Determination 7. The application has presented the following issues for determination;i.Whether the applicant has satisfied the court to set aside the summary judgement delivered on 31st July 2023

Analysis 8. This Tribunal has considered the Application, the Response, the submission of the parties and the applicable law. The question before this Tribunal is whether the Applicant has convinced this Tribunal, on a balance of probabilities, to set aside the Summary judgement entered on 11th January 2024 and reinstate the Claim.

9. Order 10 Rule 11, on setting aside judgment provides that“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”

10. The question before this Tribunal is whether it is just to exercise this discretion.

11. The Applicant claims that it was not served with the service to enter appearance, while there is an affidavit of service on record. The affidavit of service filed by a court process server is enough evidence to show that service was duly done. This was evidenced in the case of SHADRACK ARAP BAIYWO – VS – BODI BACH [1987] eKLR, where the Court of Appeal held as follows:-There is a presumption of services 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.

12. It is now upon the person alleging that service was not done to show that indeed such affidavit of service was defective. In the instant case, the applicant claims that it was never served at all.

13. In their Response, the Respondent avers that it indeed served the Applicant. On perusing the file, there is indeed a return of service that has been filed but not stamped received since the Claimant claims that it was served electronically. A copy of the WhatsApp service is attached, which shows two ticks, not clear whether they are blue ticks or grey ticks since the reproduction is on black and white. If this is true, at least the message was in the least delivered since the Applicant does not dispute the number in which the service were allegedly sent.

14. On the issue that the Applicants have issued that Summary judgement is only entered in cases when the Respondent have entered appearance but has not filed a statement of Defence, this court will look at the relevant provisions of the Civil Procedure Rules. Order 10 Rule 4 of the Civil Procedure Rules provides as follows;“Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.”The above provision does not categorize the judgement entered. Therefore, in this matter, we will consider the summary judgement entered as a judgement contemplated by the law in Order10 Rule 4 (1) of the Civil Procedure Rules. The judgement entered is, therefore, regular.

15. The Claimant Respondent informed this court that negotiations were ongoing between them and the Applicant herein after the judgement was entered. Upon perusal of the court file, the Claimant’s fixed a mention notice for 17th July 2024 to inform the court that the Respondent has been paying and to request time to enable them file a consent. This Tribunal is inclined to believe this since at this time the Claimants already had a judgement in their favour, and nothing prevented them from enforcing it against the Applicant herein. It would serve the Claimants nothing to delay execution of a judgement in their favour.

16. Flowing from above, this Tribunal is convinced that the Applicant was duly served, and hereby make the following orders;a.Notice of Motion application dated 14th November 2024 lacks merit and is hereby dismissed with costs to the Claimant/Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26 TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE - MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI - MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 26. 6.2025HON. P. AOL - MEMBER SIGNED 26. 6.2025Tribunal Clerk GechikoCharo advocate holding brief for Mr. Omari for the Respondent/ApplicantKea for Claimant – No appearanceFile closed.