[2021] KECPT 611 (KLR)
The Tribunal found that the respondent was properly served with summons to enter appearance and had instructed counsel, who entered appearance but failed to file a defence. The respondent's draft defence was deemed to be an admission of the claim rather than raising triable issues. The Tribunal held that the...
Source-derived case information.
- Citation
- [2021] KECPT 611 (KLR)
- Parties
- Applicant: Thomas Muthee Kianjai; Respondent: Menya Services Sacco Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 511 of 2019
- Procedural Posture
- Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Stay of Execution, Setting Aside Judgment, Service of Summons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Muthee Kianjai
Applicant
Menya Services Sacco Limited
Respondent
Procedural Posture
Stay Application / Ruling on Application to Set Aside Judgment and for Stay of Execution
Legal Issues
- 1 Whether the respondent was properly served with summons to enter appearance.
- 2 Whether the judgment and consequential orders should be set aside and unconditional leave to defend granted.
- 3 Whether the applicant has met the threshold for grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules.
Ratio Decidendi
The Tribunal found that the respondent was properly served with summons to enter appearance and had instructed counsel, who entered appearance but failed to file a defence. The respondent's draft defence was deemed to be an admission of the claim rather than raising triable issues. The Tribunal held that the applicant failed to demonstrate substantial loss or meet the threshold for grant of stay of execution as required under Order 42 Rule 6(2) of the Civil Procedure Rules. The Tribunal also found the respondent's internal resolution regarding withdrawal of members to be unreasonable and unfair to the claimant. Consequently, the application to set aside the judgment and for stay of...
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution and to set aside judgment is dismissed with costs.
- The judgment creditor is at liberty to proceed with the execution process.
Full Case Text
Judgment text and source record
44 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.511OF 2019
THOMAS MUTHEE KIANJAI...........................................................CLAIMANT
VERSUS
MENYA SERVICES SACCO LIMITED.......................................RESPONDENT
RULING
1. The Applicants have filed an Application dated 13. 1.2021. seeking orders:
(i) That the Honorable court be pleased to certify this application of utmost urgency and to hear it ex-parte and on a priority basis in the 1st instance;
(ii) That the Honourable court be pleased to issue an order for stay of execution of the judgment/decre, certificate of costs and all Consequential Orders herein pending the interparties hearing and determination of this Application;
(iii) That the Honourable court be pleased to set aside the judgment/decree, Certificate of Costs and all Consequential Orders herein and grant the defendants unconditional leave to defend; and
(iv) That costs of the Application be provided for.
2. The Application is based on the grounds that:
a. The Respondents were never served with Summons to enter Appearance.
b. Respondent have a stay and arguable defence which raises very weighty triable issues.
c. Plaintiff will suffer no prejudice if the orders are granted.
3. The Application was supported by the Affidavit of Paul Gitonga Cosmas Arachi sworn on 13. 1.2021 stating they were never served with Summons to enter Appearance.
4. The Claimant opposed the Application and filed a Replying Affidavit stating the Application is meant to delay and obstruct the course of justice as the Respondent/Applicant had been rightly served instructed Counsel G.M. Wanjohi to enter Appearance which he did via Memorandum of Appearance dated 23. 10. 2019 but did not file a Defence.
5. The Applicant in the further Affidavit dated 24. 2.2021 and filed on 2. 3.2021 acknowledged service of the summons to enter Appearance and instructed G.M Wanjohi to defend their course but they failed.
6. The parties were directed to canvass the Application by way of written submissions. The Applicants filed their submissions dated24. 2.2021on 2nd March 2021.
The Claimant/Respondent submissions were dated 9. 3.2021 and filed on even date.
7. We have considered the application and submissions. The Respondent was duly filed failed to enter Appearance, interlocutory judgment was entered against them then they awoke from slumber when a Notice of Entry of judgment was served on them.
The Respondent contend their draft Defence raises weighty triable issues.
Having perused the Defence therein the same is an admission to the claim.
8. We have considered the Application and the submissions herein. The issue is one whether Stay of Execution should be granted?
It is in the interest of justice that this Tribunal exercises its discretion with caution not to abuse the court process and for justice to be seen to be done.
Order 42 Rule 6 (2) Civil Procedure Rule lays down the action which a party must establish in order for this Tribunal to order stay of execution.
The Rule provides:
“ No order for stay of execution should be made under sub rule (I) unless:
a. The court is satisfied that substantial loss may result to the applicant unless the order is made and the Application has been made without unreasonable delay and
b. Such security as the court orders for the due performance of such desirable order as may ultimately be binding on him has been given by the Applicant.
c. The Question then would be, has the Applicant proved the substantial loss he may undergo if the order is not made?
None whatsoever, since that the Respondent is servicing a loan and that in a Special General Meeting held on 8. 1.2017 it was unanimously agreed that members wishing to withdraw would only do so in the year 2022.
9. We find the said resolution unreasonable and not fair to the Claimant or members of the Respondent.
10. Conclusion
a. We find the Application fails to meet the threshold for grant of stay of execution and therefore dismissed with costs.
b. The Judgment Creditor to proceed to the execution process.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF MAY, 2021.
Hon. B. Kimemia Chairperson Signed 6. 5.2021
Hon. J. Mwatsama Deputy Chairperson Signed 6. 5.2021
Mr. P. Gichuki Member Signed 6. 5.2021
Tribunal Clerk Leweri
No appearance
Hon. B. Kimemia Chairperson Signed 6. 5.2021