[2023] KECPT 835 (KLR)

Shoppers Sacco Society Ltd v Nyancharo (Tribunal Case 323 of 2021) [2023] KECPT 835 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 835 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 323 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

Stephen Gwaro Nyancharo

Respondent

Ruling

1. The Application for determination is brought vide a Notice of Motion dated 18th January 2023. The Application seeks the following orders: -a.Spentb.That the Claimant cited herein (Shoppers Sacco Limited) either through its Management Committee, employees, Agents/proxies are hereby restrained forthwith and/or prohibited from harassing, intimidating, and/or causing arrest of the Applicant/Respondent pending inter partes hearing, determination of this suit and/or further Orders of the Tribunal.c.That the herein Claimant is hereby ordered forthwith to serve the herein Applicant with the filed Statement of Claim and all documents annexed thereto pursuant to the mandatory provisions of section 10 (1) of the Cooperative Tribunal (Practice and Procedure) Rules, 2009 (Rev. 2012) to enable the Applicant/Respondent prepare his response thereto accordingly.d.That for purposes of justice an Order do issue forthwith stay the hearing of this suit scheduled for 26th January,2023 pending the hearing of this application and full compliance on the side of the Claimant regarding service of documents upon the herein Applicant/Respondent.e.That the costs of this Application be provided for.

2. This Application is premised on 4 grounds among them being that the Claimant has not yet served the pleadings and/or documents for this suit upon the Respondent an action which contravenes the Respondent’s Constitutional right envisaged under Articles 47 and 50 (1) and (2) of the Constitution of Kenya, 2010 and Section 4 of the Fair Administrative Action Act, 2015, Laws of Kenya.The Application is supported by the Supporting Affidavit sworn by Mr. Stephen Gwaro dated 18th January 2023, in which he stated that the Claimant served him with a Decree of the Tribunal which he is using to intimidate the Respondent by using the police by causing unlawful arrests and on 19th August 2022, he was arrested and locked up at the central Police Station for three days.

3. The Claimant filed vide a Replying Affidavit that was sworn on 25th January 2023 by David Odhiambo. They claim that Respondent/Applicant is a Judgement Debtor who has deliberately refused to settle the judgement sum as pronounced by the Honorable Tribunal. That the Respondent is being dishonest with the court with the issue of service of documents. The Respondent was served with the Statement of Claim together with all accompanying documents on 7th January 2022. The Claimant claims that they herein requested for Judgement in the procedural manner, and the court granted the judgement after it was satisfied that the Respondent had been properly served. That the Respondent was later served with Decree and Certificate of Costs on 2nd February 2022. Further, they claim that they took out Notice to Show Cause against the Respondent and proceeded to serve the same upon the Respondent on 5th May 2011.

4. Further, the Claimants claim that all the affidavits of service show that the Respondent works at Naivas Supermarket, Gateway Mall Branch along Mombasa road within the county of Nairobi. That is the place where the Claimant has been effecting service upon the Respondent, and it is dishonest from the Respondent to state that he has never been served with court documents. They claim that they later took out warrants of arrest dated 19th April 2022 when the Respondent provided to be non-complaint. It is on the strength of this warrant of arrest that the Respondent was arrested, therefore his arrest was sanctioned by the Court.

5. The Claimants claim that the Honorable Tribunal should not grant audience to the Respondent since he is not compliance with the court orders in terms of settling the decretal sum. That in his Application dated 18th January 2023, the Respondent/Applicant has not committed himself to reasonable/acceptable payment plan so as to satisfy the Judgement of this Honorable Tribunal. Further, the various allegations against the Claimant that the Respondent/ Applicant has raised in his supporting affidavit are baseless and an attempt to re-open the case when the case has already closed.

6. The Claimant/Respondent further claim the Respondent/Applicant has not tendered proof before the Honorable Tribunal to show that he is servicing other loans as alleged. That the lack of such evidence only goes to show that the Applicant is scheming to avoid settling loan sums that are due and owing to the Claimant. Further, that the Application dated 18th January 2023 is unmeritorious and the same forms good material for dismissal with costs.Parties were directed to file their written submissions. The Claimant/Respondent filed their written submissions dated and filed on 30th May 2023. As at the date of rendering this ruling, the Respondent/Applicant had not filed their written submissions.

Issue One: Whether The Respondent Was Served? 7. 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.InShadrack 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 ProcedureVolume 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”.An affidavit of service produced by the Claimant sworn by Elvis Muthoka an authorized court server, dated 28th January 2022; shows that the Respondent accepted service of the statement of claim at around 3. 45 pm but declined to sign the service copy indicating that he will get in touch with the Claimant.In addition, he claims that on 5th May 2022 at 10. 14 am, he served the Respondent with a Notice to Show cause and upon service he accepted but declined to sign the service copy indicating that he will personally attend court.

8. Further, on 25th February the process server claims that at 1. 35pm he served the Respondent the aforesaid Decree and Certificate of Costs dated 17th February 2022 where upon service, he accepted but declined to sign the service copy indicating that he will not pay any single cent and he directed the Claimant to go and arrest him.The court server has provided several Affidavit of Service as evidence to show the Respondent/Applicant was sufficiently served physically and hence notified of the suit. Therefore, he complied with Order 5 rule 8 of the Civil Procedure Rules, 2010.

Issue Two: Whether The Application Has Merit And Should Be Allowed? 9. 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.Similarly, the Court in the case ofRahman 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 he 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 J Test In Patel v EA 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.”

10. Further, in the case of, Tree Shade Motor Limited v DT Dobie Co Ltd CA 38/98, the Court held that even when ex-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.

Upshot 11. With no Draft Defence on record and mere denials by the Respondent/Applicant, the Application 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 JEMIMAH