[2023] KECPT 822 (KLR)

Shoppers Sacco Society Ltd v Nderitu (Tribunal Case E383 of 2021) [2023] KECPT 822 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 822 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E383 of 2021

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

August 31, 2023

Between

Shoppers Sacco Society Ltd

Claimant

and

Mariah Wambui Nderitu

Respondent

Ruling

1. The Application for determination is brought vide a Notice of Motion dated 16th November 2022. The Application seeks the following orders: -a.Spentb.That the ex-parte judgement, decree dated 7th July of July 2022 and consequential orders issued on 14th November 2022 against the Respondent/Applicant by this Honorable Court be stayed and/or set aside/vacated pending the hearing and determination of this Application.c.That the ex-parte judgement, decree dated 7th July 2022 2022 and consequential orders issued on 14th November 2022 against the Respondent/Applicant by this Honorable Court be stayed and/or set aside/vacated pending the hearing and determination of this Suit.d.That the Applicant be granted leave to enter appearance and file her statement of defense in the above mentioned suit and that the suit be heard afresh so that it can be heard and determined on merit.e.That the costs of this Application be in cause.The Application is supported by a Supporting Affidavit of Maria Wambui Nderitu sworn on 16th November 2022, in which she states that she was never aware of the proceedings as she was not served with the pleadings nor summons to enter appearance. Further, that the Respondent/Applicant does not understand the claim against her, how the decree amount accrued and additionally, has no recollection of owing any outstanding loan.The Claimant/Respondent filed vide a Replying Affidavit that was sworn on 18th November 2022 by David Odhiambo, the Credit supervisor of the Claimant/Respondent. He claims that the Respondent/Applicant applied for a normal loan on 20th January 2017 for a total Kshs. 580,000/= and the said amount was approved and disbursed to her account. Further, that on 8th November 2021, a demand letter of payment was sent to the Respondent/Applicant. That the said loan has remained unpaid for a long time a fact which is in the Respondents knowledge despite her being in employment.

2. The Claimant/Respondent claims that it is untrue that the Respondent/Applicant was not aware of the court proceedings or pleadings yet she was served both physically and electronically with statement of claim together with summons to enter appearance but she declined to accept service. That after the Respondent/Applicant learned that a warrant of arrest was issued against her, she visited our offices and requested for time to raise Kshs. 50,000/= a fact well known by the Respondent. Further, they claim that the Respondent’s action to seek legal representation is an afterthought and misleading since the court records are very clear that she has been served on several occasions but declined to accept service.

3. Parties were directed to file their written submissions. The Claimant/Respondent filed their written submissions dated and filed on 23rd January 2023. The Respondent/Applicant filed their written submissions on 13th June 2023 dated 28th February 2023. As such issues one is whether the defendant was served?The manner of service of summons on the defendant is set out in Order 5, rule 8 of the Civil Procedure Rules, 2010 which states that wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on the agent shall be sufficient.In Shadrack arap Baiywo vs. 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”.Further, in Sifuna & Sifuna Advocates v Patrick Simiyu Khaemba [2021] eKLRFred Nyagaka J correctly observed that “In the modern era wherein technology is advancing by the day, traditional ways of doing things have to be changed to match with modern contemporary ways. Thus, in matters of service of documents, the law has gradually moved from personal service to electronic service.”An affidavit of service produced by the Claimant/Respondent, sworn by Elvis Muthoka an authorized court server, dated 17/01/2022; shows that they met outside Huduma Centre opposite Nomaneno Bazaar as agreed and the Respondent/Applicant accepted service at around 4. 05 pm but declined to sign the service copy indicating that she was disputing the amount indicated in the Statement of Claim.

4. In addition, the court server claims that on the same day he electronically served the Respondent/Applicant through her email nmariah19@yahoo.com which she had provided by scanning and sending the aforesaid Statement of Claim together with summons to enter appearance. The Claimant/Respondent has provided screenshots the said email.Further, on 18th January the process server claims that he served the Respondent/Applicant electronically by sending the aforesaid statement of claim together with summons to enter appearance through WhatsApp on her mobile phone number 072xxxx963. The Claimant/Respondent has provided screenshots the said WhatsApp text. The Claimant/Respondent has also provided screenshots of a Notice to show cause dated 19/05/2022, notifying the Respondent/Applicant of the suit against him. A demand letter dated 8th November 2021 has also been produced as evidence.

5. The court server has provided several Affidavit of Service as evidence to show the Respondent/Applicant was sufficiently served physically and electronically and hence notified of the suit. Therefore, he complied with Order 5 rule 8 of the Civil Procedure Rules, 2010. Issue two is whether this Tribunal should set aside the ex-parte judgement?Setting aside judgment is provided under Order 10, rule 11 of the Civil Procedure Rules, 2010 which 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. In Rayat Trading Co. Limited v Bank of Baroda & Tetezi House Ltd [2018] eKLR the Court will consider if:a.The defendant has a real prospect of successfully defending the claim.b.It appears to the court that there is some other good reason why.c.The judgment should be set aside or varied.d.The defendant should be allowed to defend the claim.

6. Similarly, the Court in the case of Rahman v Rahman(1999), considered the nature of the discretion to set aside a judgment and concluded that the elements the judge had to consider were: the nature of the defense, the period of delay, any prejudice the claimant was likely to suffer if the default judgment was set aside, and the overriding objective.The Respondent/Applicant claimed to not have been served and so she was not able to file a memorandum of appearance and a defense. But, from issue (a) above, it is clear that they were served. These provide sufficient evidence that the Respondent/Applicant was aware of the court proceedings. They therefore, have not provided a good reason why they delayed to enter appearance or file their Defence.Another key factor to consider when setting aside an ex-parte judgment, as seen above, is whether the defendant has a Defence that raises triable issues. 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 JTest in Patel V E.A. Cargo Handling Services LTD. [1974] E.A. 75 at P. 76 (Duffus P.) that “…a triable issue …is an issue which raises a prima facie Defence and which should go to trial for adjudication.”Further, in the case of, Tree Shade Motor Limited v DT Dobie Co Ltd CA 38/98, the Court held that even whenex-parte judgment was lawfully entered, the court should look at the draft Defence to see if it contained a valid or reasonable Defence.The Respondent/Applicant despite filing their Application has failed to file a draft Defence which would in essence assist the Tribunal to know if the Defence raises triable issues. As such how can we assist the Respondent in this instance? Nothing to show their Defence as it were? UpshotApplication dated 16th November 2022 is found to be without merit and the same is dismissed with costs to the Claimant/Respondent.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHRuling delivered in absence of the parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023