[2023] KECPT 807 (KLR)

Shoppers Sacco Society v Waweru (Tribunal Case E135 of 2022) [2023] KECPT 807 (KLR) (26 October 2023) (Ruling)

Neutral citation: [2023] KECPT 807 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E135 of 2022

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

October 26, 2023

Between

Shoppers Sacco Society

Claimant

and

Zakaria Nyutu Waweru

Respondent

Ruling

1. This Ruling dispenses with the Respondent’s Notice of Motion Application dated 9th February 2023 and filed on the same date and supported by an Affidavit sworn by the Respondent Zakaria Nyutu Waweru.. The same is brought under section 1, 1B, 3, 3A of the Civil Procedure Act, order 10, rule 11 of the Civil Procedure Rules 2010, article 50(1) of the Constitutionof Kenya and section 76 of the Co-operative Society Act, as well as all the enabling provisions of the law. The application seeks the following orders;1. That this Application be certified urgent and be heard exparte at the first instance.2. That there be a stay of all proceedings against the Respondent herein pending the hearing and determination of this Application and or until further orders of this Tribunal.3. That the Interlocutory Judgment entered against the Respondent together with all the Consequential Orders be set aside and leave be granted to the Respondent to defend the claim.4. That this Honourable Tribunal be pleased to make any order it deems just and expedient in the circumstances of the present matter.5. That the costs of this application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: An Interlocutory Judgment was delivered on the 8th July 2022 against the Respondent/Applicant. However, the Applicant contends that he neither received the Summons to Enter an Appearance nor the pleadings and this is the reason why they did not enter appearance or file a Statement of Defence. The Respondent further contend that he has a strong case and a reasonable Defence and that if the prayers to set aside the Interlocutory Judgement are not granted, the Respondent will permanently lose an opportunity to defend himself.

3. The background of the Application is that the Claimant herein brought a claim against the Respondent for the recovery of a sum of Ksh. 284,971. 11/= which had allegedly been advanced to the Respondent when the Respondent was a member of the Claimant. The sum is composed of a normal loan advanced sometime in 2016, and an emergency loan advanced sometime in 2017.

4. The Claimant/Respondent filed a Replying Affidavit, and both parties filed submissions. In their response, the Claimant/Respondent assert that the Applicant herein has always been served with all the court processes. The Claimant/Respondent further depone that there were no dividends that were declared to cushion the Sacco from the effects of Covid-19, and further that his Share Capital was deducted to cover the loan balances.

5. In their submissions, the Applicants/Respondents agree that they did not enter appearance or file a Statement of Defence because they did not receive the summons or the pleadings, and that they came to know of the matter when they were served with the notice to show cause. The Respondent contends that the WhatsApp screenshots that were filed are inconclusive since they do not show a phone number. The Applicant relies on the constitution and various cases to stress on the need to focus on substantive justice rather than procedural technicalities.

6. The Claimants on the other hand in their submissions, sought to answer the question on whether the Application before court is merited. On this question, they rely on various case laws, and contend that the Respondent/Applicant does not dispute that it is indebted to the Claimant and his only issue is on dividends on his deposits. They further contend that the Defence does not raise any triable issues and that the Application was not made without undue delay. They pray that the Respondents Application be dismissed with costs.

Analysis 7. The question before this tribunal is whether the Interlocutory Judgment entered against the Applicant/Respondent should be set aside.

8. It is not in dispute that the Applicants/Respondents did not enter an appearance or file Statement of Defence. What is in dispute is whether proper service of summons was done. The Applicants contend that they did not receive the summons to enter appearance, while the Claimants claim that they did serve, and indeed there is an Affidavit of Service on record with copies of WhatsApp screenshots attached. The Applicants contend that the WhatsApp screenshots should not be considered since they do not show the phone number of the Respondent.

9. This Tribunal has considered the Application, the responses and the submissions of the parties. In reaching a decision, the Tribunal is guided by the notion that the Court’s power to set aside an Interlocutory Judgment is exercised with a view of doing justice between the parties.In the case of Philip Kiptoo Chemwolo and Mumias Sugar Company Ltd v Augustine Kubede (1982-1988) KAR, the Court held that“The Court has unlimited discretion to set aside or vary a judgment entered in default of appearance upon such terms as are just in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties”Further, in the case of Thayu Kamau Mukigi v Francis Kibaru Karanja (2013) eKLR, the court stated as follows:“……… when an ex-parte judgment was lawfully entered the court should look at the draft Defence to see if it contained a valid or reasonable Defence.”This Tribunal has looked at the copies of the WhatsApp screenshots filed with the Affidavit of Service and indeed they do not indicate the phone number which the Summons was sent to. This Tribunal has also perused the draft Defence filed together with the Application herein. In the Statement of Defence, the Applicant/Respondent admits that indeed he borrowed some money from the Claimant, made repayments and that the Claimant recovered the loans from his guarantors. We find that these are triable issues. This Tribunal is inclined to give a benefit of doubt to the Respondent/Applicant that service was not properly done.

10. The upshot of the foregoing is that we allow the Applicant/Respondent’s Notice of Motion Application dated 9th February 2023 with the following orders;a.The Applicant/Respondent to pay thrown away costs of Ksh. 15,000/- to the Claimants within 30 days of this ruling.b.The Respondent to file his Statement of Defence within 14 days of this Ruling, and thereafter comply with order 11 of Civil Procedure Rules.c.Mention for Pre-trial directions on 16. 1.2024.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023TRIBUNAL CLERK JONAHLucheli advocate holding brief for Kulecho advocate for the Respondent.Kiprotich advocate for the Applicant.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023