[2024] KECPT 1711 (KLR)

Ukristo na Ufanisi Savings and Credit Co-operaitve Society Limited v Kareithi (Tribunal Case E203 (180) of 2016) [2024] KECPT 1711 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1711 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E203 (180) of 2016

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

October 3, 2024

Between

Ukristo na Ufanisi Savings and Credit Co-operaitve Society Limited

Claimant

and

Edwin Njiinu Kareithi

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member)

Ruling

1. The Respondent’s Notice of Motion Application dated 18th September, 2023, wherein the Respondent seeks the following orders: -a.Spent.b.This Honorable Tribunal be pleased to stay the execution of the ex-parte judgement entered in this matter together with the subsequent decree dated 14th August pending the inter-parties hearing of this Application.c.This Honorable Tribunal be pleased to set aside the ex-parte judgement entered in this matter together with the subsequent decree dated 14th August, 2023. d.This Honorable Tribunal be pleased to direct the Claimant to serve all the pleadings in this matter to the Respondent and the matter be set down for hearing on its merit.e.That the Respondent be granted leave to defend this matter.f.Any other or further relief which this Honorable Tribunal deems fit and just to grant.g.The costs of this Application be provided for.The Application is premised on the grounds on the face of the Application and on the Supporting Affidavit of the Respondent sworn on 18th September, 2023. The Claimant Responded to the Respondent’s Application vide a Replying Affidavit sworn on 9th February, 2024.

Respondent’s Case. 2. The Respondent states on the grounds of his Application that he was not aware of the existence of the case between himself and the Claimant before he was served with a Notice of Entry of Judgement accompanied by a decree directing the Respondent to pay a sum of Kshs. 4,923,767. 84/= to the Claimant.That the Respondent was never served with the pleadings in this matter. That the Claimant has threatened to execute the Decree to the detriment of the Respondent. That the matter proceeded ex-parte without the Respondent’s participation and the judgement obtained by non-disclosure if material facts. That it is in the interest of justice that the judgement is set aside and the matter be set down for hearing inter-parties.

3. In his Supporting Affidavit, the Respondent deponed that on 14th September, 2023, he received on his WhatsApp a copy of a Decree together with a Notice of Entry of Judgement from a process server. That on pursuing the Decree, he noted that judgement had been entered against him on 31st July, 2023 for a sum of Kshs. 4,923,767. 84/= together with costs of Kshs. 147,975. 00/=. That on pursuing the Notice of Entry of Judgement, he noticed that the same had a different date of entry of judgement, being 14th August, 2003, for a sum of Kshs. 4,645,064,86/= with the said notice being dated 11th September, 2023. That the Claim by the Claimant for the sum as appearing on the decree is not correct and the Claimant is guilty on non-disclosure of material facts.

Claimant’s Case. 4. In the Replying Affidavit, the Claimant/Respondent opposes the Respondent’s Application and states that the Respondent was served through the Claimant’s Advocates on 18th May, 2023 with the Statement of Claim and the Summons to Enter Appearance through the WhatsApp number 0712228989, that was used to serve him with the Notice of entry of Judgement. That due to the failure of the Respondent to enter appearance and/or file a Defence, judgement was entered against the Respondent, which was a regular judgement in accordance with the provisions of Order 10 Rule 4 of the Civil Procedure Rules. That the Respondent has not satisfied the laid down requirements for setting aside a regular ex-parte judgement. That the Respondent’s Application is therefore an afterthought and deliberate tactic to delay and/or obstruct the course of justice and prays that the same be dismissed with costs to the Claimant.

Analysis and Determination. 5. We have considered the Respondent’s Application, the Supporting Affidavit thereof and the Replying Affidavit of the Claimant and have noted two issues for consideration.1. Whether or not the Respondent was served with the Statement of Claim and Summons to Enter Appearance.The Claimant’s request for judgement on record was accompanied by an Affidavit of service sworn by Franklin Amdany Kipkirui, who deponed that on 28th May, 2022, on 8. 54am via Whatsapp number 0712228989, the message of which was received by the Claimant as per the screenshot of the Application annexed thereto.We note that the Claimant has not disputed ownership of whatsapp number 0712228989 and he has admitted being served with the Notice of Entry of judgement.We are therefore satisfied that the Respondent was duly served with Statement of Claim and Summons to Enter Appearance on 18th May, 2022 and ought to have entered appearance within 15 days thereafter. The judgement entered on account of the default is regular.2. Whether or not the Decretal sum as appears on the Decree is correct.The Respondent states that he was served with a Notice of Entry of Judgement bearing a decretal sum of Kshs 4,645,064. 86/= and a decree bearing a decretal sum of Kshs. 4,923,767. 84/= with costs of Kshs. 147,975. 00/=.

6. We have looked at the Statement of Claim and two documents stated by the Respondent together with the Request for Judgement on record and note that:-a.In the Statement of Claim, the Claimant prayed for Judgement in the sum of Kshs. 4,645,064. 86/= with interest at court rate from September, 2022 till payment is made if full and costs of the suit with interest on it till payment in full.b.On the Request for Judgement, the Claimant requested for judgement for the liquidated amount of Kshs. 4,645,064. 86/= together with interest and costs. On 31st July, 2023, the Tribunal entered summary Judgement in favour of the Claimant against the Respondent for Kshs. 4,645,064. 86/= plus costs and interest.c.The amount in the Notice of Entry of Judgement is correctly principal amount of ‘Kshs. 4,645,064. 86/= plus costs and interest on the principal amount as provided for in the attached copy of the decree’d.On the Decree, the Judgement amount is clearly stated as the principal amount of Kshs. 4,645,064. 86/=, the interest from the date of filing suit to the date of decree was Kshs. 278,703. 84/= and the total costs were Kshs. 147,975/=.From the above analysis, we find that none of the documents are erroneous, and the decree is therefore a proper decree emanating from the summary judgement of this Tribunal.

3. Whether or not the Claimant has not made material disclosure.The Respondent has not set out specific material or information withheld by the Claimant and which if disclosed, would have led to a different decision by the Tribunal as regards the summary judgement herein. We therefore hold that this ground fails.

7. We are guided by the case of Kenya Commercial Bank Ltd –v- Nyaritage & Another [1990] KLR 443 Bosire J, as he then was, held that:The Civil Procedure Ruled donates a discretionary power to the Court to set aside or vary an ex-parte judgement entered in default of appearance or Defence and any consequential decree or order upon such terms as are just.”

8. However, it is trite that he who seeks discretion of the Court has to convince the Court to exercise its discretion in his favour.In the case of Philip Kiptoo Cherono & Mumia Sugar Ltd & Augustine Kubede [1982-1988], and hold that the Court ought to be given reasons why a party was unable to file their documents within the stipulated period that the Respondent has not attached any draft Defence or to respond to his Application, there was no way for the Tribunal to determine whether there are any issues for determination at a full hearing, warranting the setting aside of a Regular ex-parte judgement.Consequently, we hold that the Respondent’s Notice of Motion Application dated 18th September, 2023 lacks merit and the judgement entered by the Tribunal against the Respondent on 31st July, 2023 is upheld. Application dated 18th September, 2023 is hereby dismissed with costs to the Claimant

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE - MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI - MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 3. 10. 2024HON. PAUL AOL - MEMBER SIGNED 3. 10. 2024TRIBUNAL CLERK MUTAIWairimu advocate for Claimant/RespondentEdwin Njiinu Kareithi- no appearance