[2021] KECPT 557 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.234 OF 2020

STEPHEN CHEGE NG’ANG’A.............................................................................CLAIMANT

VERSUS

STIMA INVESTMENT CO-OPERATIVE SOCIETY LIMITED.................RESPONDENT

RULING

Vide the Application dated 14. 9.2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

a. That this Application be certified urgent and service thereof be dispensed with in the first instance;

b. That pending the hearing and determination of the Application herein, an order does issue staying the ex-parte judgment of this Tribunal delivered and issued on 25th August, 2020;

c. That the ex-parte judgment of this Tribunal delivered and issued on 25th August, 2020, be set aside and the Applicant be granted leave to file and serve its Response to the Respondent’s Statement of claim dated 28. 7.2020; and

d. Costs be in the cause.

The Application is supported by the grounds on its face and the Affidavit sworn by Viola Odhiambo on 14. 9.2020. The Claimant has opposed the Application vide the Replying Affidavit sworn by himself on 29. 9.2020.

Vide the directions given on 16. 9.2020, the Application was canvassed by way of written submissions. The Respondent filed its submissions on 21. 10. 2020 while the Claimant did so on 3. 11. 2020.

Respondent’s Case

It is the Respondent’s contention that judgment in this matter was entered in default whilst it was trying to enter Appearance through the online portal. That once it instructed its advocates to file the necessary documents on 20. 8.2020 the said firm of Advocates immediately applied to link the case with judiciary e-filing portal. That there was delay in linking the case to the portal thus making it impossible for it to file a memorandum of Appearance.

That the case was subsequently linked on 26. 8.2020 when it filed a memorandum of Appearance on8. 9.2020.

That unbeknown to it, the Claimant had obtained judgment in default on 25. 8.2020. That the delay in filing memorandum of Appearance were not deliberate. That it has a good defence which deserves to be heard and determined on merit.

Claimant’s Case

The Claimant has opposed the Application on grounds that the draft defence does not raise any triable issue. That he invested Kshs.3,132,140/= for the purchase of land and that the Respondent has failed to avail the said properties. That it is thus not in dispute that the Respondent took his money.

Issues for determination

The Respondent’s Application has raised the following issues for determination:

a. Whether the Respondent has established a proper basis for the setting aside of the default judgment entered on 25. 8.2020.

b. What Orders are available in the circumstances.

Setting aside of default judgment

Order 10 Rule 11 of the Civil Procedure Rules, in the legal framework for setting aside of a default judgment. It provides thus:

“ 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”

From this provision, it is manifest that the power of a court to set aside a default judgment is a discretionary one. The court of Appeal in the case of Tushike Construction Company Limited – vs- Harambee Co-operative Society Limited [2019] eKLR. Had the following to say about discretion.

“ We may sample the principles Applicable under the rule from the Court’s decision in the Pithon Waweru Maina case [Supra], thus:

“ a. Firstly, there are no limits or restrictions on the judge’s discretion except that, if he does vary the judgment he does so on such terms as may be just.....The main concern of the Court is to do justice to the parties, and the court will not impose on itself to fetter the wide discretion given it by the rules. (b) Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, ...”

Taking cue from the decision of this court above especially on the aspect of discretion, we have looked at the circumstances of the present case and note that the claim was instituted on 4. 8.2020. The Claimant requested for judgment on 24. 8.2020. Summons to enter Appearance was served upon the Respondent on 6. 8.2020. The Respondent submitted and paid for memorandum of Appearance on 26. 8.2020. The Said memorandum was received on 8. 9.2020.

It follows therefore that in terms of the time limited in the summons to enter Appearance, it was to do so on or before 21. 8.2020. It submitted the same on 26. 8.2020. This is a period of 5 days after the lapse of the said 15 days. Without looking at the merit or otherwise of the draft defence, we exercise our discretion and set aside the default judgment purely on the explanation by the Respondent that it encountered challenges in linking the case to the e- filing portal. This is an occurrence which cannot be attributed to the Respondent. By entering Appearance in good time, the Respondent has demonstrated seriousness in defending the claim.

Conclusion

The upshot of the foregoing is that we find merit in the Respondent’s Application dated 14. 9.2020 and hereby allow it based on the following terms.

a. The default judgment entered on 25. 8.2020 is hereby set aside allowed with costs in the cause.

b. The Respondent is granted leave of 14 days to file and serve a statement of Response as well as witness statement and list and bundle of documents.

c. The Claimant to file a Reply to the Response as well as Supplementary list and bundle of documents ( if need be) within 14 days of service.

d. Mention for Pre- trials on 16. 3.2021.

Ruling signed, dated and delivered virtually this 28th day of January, 2021.

Hon. B. Kimemia Chairperson signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Mbuthia Advocate for Claimant/ Respondent: Present

No appearance for Respondent/ Judgment Debtor/Applicant:

Hon. B. Kimemia Chairperson signed 28. 1.2021

Mr. Mbuthia advocate: There is no judgment dated 25. 8.2020.

Order - The Respondent to file for review or any other action if need be.

Hon. B. Kimemia Chairperson signed 28. 1.2021