[2021] KECPT 584 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.77 OF 2019

UCHUKUZI PSV SACCO SOCIETY LIMITED..........................CLAIMANT

VERSUS

ADRIAN MUMIRA..................................................................... RESPONDENT

RULING

What is before us for consideration and determination is the Respondent’s dated 9. 3.2020, It seeks for Orders inter alia:

1. Spent;

2. That that pending the hearing and determination of this Application inter-parties and pending the hearing of this suit, there be a temporary stay of the judgment and decree issued in May, 2019 and all consequential Orders thereof;

3. That the Honourable Court be pleased to aside the judgment and decree issued on May, 2019 against the Respondent/Applicant and the Respondent be allowed to defend this suit;

4. That summons to attend court be issued against the Mathew Musotsi, the alleged process server for purposes of cross-examination; and

5. That the costs of this Application be provided for.

The Application is supported by the grounds on its face and the following Affidavits sworn by the Respondent:

a. Supporting Affidavit sworn on 9. 3.2020; and

b. Supplementary Affidavit sworn on 15. 9.2020.

The Claimant has opposed the Application by filing a Replying Affidavit sworn by Albert Karakaha on 6. 8.2020.

Vide the directions given on 14. 9.2020, the Application was canvassed by way of written submissions. The Respondent filed his written submissions on 22. 9.2020 while the Claimant did so on 27. 10. 2020

Respondent’s Contention

Vide the instant Application the Respondents seeks for the setting aside of the default judgment entered on 25. 9.2019 on account of the fact that he was never served with summons to enter Appearance. That as such, he did not deliberately abscond court proceedings. That he has a good defence with triable issues.

Claimant’s Case

Vide the Replying affidavit sworn by Albert Karakacha on 6. 8.2020, the Claimant contend that the instant Application is merely a ploy by the Respondent to protract these proceedings. That the Respondent has not annexed a draft Defence to support the claim that the same has triable issues. That the Respondent does not deny being indebted to the Claimant. That he was properly served with summons to enter Appearance as evidenced by the Affidavit of serve sworn by Mathew Musotsi.

Respondent’s Supplementary Affidavit sworn on 5. 9.2020

Vide this Affidavit, the Respondent reiterates not being served with summons to enter Appearance and prays for leave to cross- examine the process server, Mathew Musotsi.

Issues for determination

The instant Application has presented the following issues for determination:

a. Whether the Respondent has established a proper basis to warrant the setting aside of the default judgment entered on 27. 5.2019;

b. Who should meet the costs of the Application?

Setting aside of default Judgment

We have jurisdiction to set aside a default judgment by dint of Order 10 Rule 11 of the Civil Procedure Rules. The Rule 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.”

In the case of Patel – vs- East Africa Cargo Service Limited (1974)EA 75, the Court underscored this provision in the following terms:

“ The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given to it by the Rules.”

Before we can exercise our jurisdiction under Order 10 Rule 11 above, we firstly have to ascertain whether the default judgment is a regular or irregular one. If the Judgment is an irregular one, then we will set it aside ex debito justiciae.

This was the holding in the case of K- Rep Bank Limited -vs- Segment Distributors Limited [2017] eKLR.

The court in the case of Fidelity Commercial Bank Limited – vs- Owen Amos Ndungu & Another, HCC.NO. 241/1998 gave a distinction between a regular and irregular judgment as follows:

“ A distinction is drawn between regular and irregular judgments. Where summons to enter Appearance has been served and there is default in entry of Appearance the ex parte judgment entered in default is regular. But where the exparte judgment sought to be set aside is obtained either because there was no proper service or any service at all, of the summons to enter Appearance, such judgment is irregular and the affected Defendant is entitled to have it set aside as of right”

Where the default judgment is regular, then the Tribunal has to consider if the draft Defence filed with the Application raises triable issues. This was the holding in the case of James Kanyiita Nderitu & Another - vs- Marios Philotas Ghikes & Another [2016]eKLR. In the pertinent part, the court held thus:

“ In a regular default judgment, the Defendant will have been duly served with summons to enter appearance, but for one reason or another, he failed to enter appearance or to file a Defence, resulting in default judgment. Such a Defendant is entitled under Order 10 Rule 11 of the Civil Procedure Rules to move to court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the default judgment and will take into account such factors as to the reason as for the failure of the Defendant to file his memorandum of Appearance, or defence, as the case may be, the length of time that has elapsed since the default judgment was entered; whether the intended Defence raises triable issues, the respective prejudice each party is likely to suffer whether on the whole, it is in the interests of justice to set aside the default judgment.”

From the foregoing, it is apparent that the Respondent is disputing service of summons to enter Appearance. He avers that he was not served with the same and has sought leave to cross –examine the process server, Mr. Mathew Musotsi.

On its part, the Claimant contend that the Application is not merited as the Respondent has not annexed the draft Defence. Secondly, that the Respondent was duly served with the summons to enter Appearance as evidenced by the Affidavit of service sworn by Mathew Musotsi.

Order 19 Rule 2 of the Civil Procedure Rulesprovides with respect to swearing of an affidavit thus:

“ Upon any Application, evidence may be given by Affidavit, but the court may at the instance of either party, Order attendance for cross – examination of the deponent.”

The Claimant has just called upon us to invoke our powers under Order 19 Rule 2 above and summon the deponent of the undated Affidavit filed on 4. 4.2019. We have perused the said Affidavit. The process server deponed that he personally served the Respondent with summons to enter Appearance when he met him en-route Kisumu at Kikuyu. That the Respondent acknowledged service but refused to sign on his counterpart copy.

In terms of Order 19 Rule 2 above, the only facility available for us to confirm whether or not the Respondent was duly served with summons to enter Appearance or not is by way of cross examination of the Deponent of the Affidavit of service in this case, it is Mathew Musotsi.

The question that begs is whether we should take the said route. Upon taking into account the circumstances of the present Application and the matter at hand, we ask ourselves whether it will be in the interest of judicial time to take a few months or so to ascertain service of a pleading filed in the year, 2014. We say so cognizant of the fact that owing to its nature, dates are hard to come by in this Tribunal.

With this observation in mind, we find that it will be in the interests of justice for judicial time to be spared towards considering the merits of the claim. This is a claim for recovery of loan arrears and we do not find any prejudice to be suffered by the Claimant if we allow the Respondent to file a response to the claim.

The totality of the foregoing is that we compromise the instant Application in the following terms.

a. The Default Judgment entered on 27. 5.2019 is hereby set aside;

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

c. The Claimant to file and serve a Reply to the Response as well as supplementary witness statements and documents within 7 days of service;

d. Mention to confirm compliance and fixing a hearing date on 3. 3.2021; and

e. No Orders as to costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JANUARY, 2021.

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021

MR. P. GICHUKI MEMBER SIGNED 7. 1.2021

MR. B. AKUSALA MEMBER SIGNED 7. 1.2021In the presence of Mr. Chimei for Respondent

Mr. Karanja holding brief for Kimeu for Claimant

Court clerk Maina

HON. F. TERER DEPUTY CHAIRMAN SIGNED 7. 1.2021