[2024] KECPT 1390 (KLR)

Ukulima Co-operative Savings Litd v Omollo (Tribunal Case E253/271 of 2023) [2024] KECPT 1390 (KLR) (Civ) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1390 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E253/271 of 2023

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

August 29, 2024

Between

Ukulima Co-operative Savings Litd

Claimant

and

Magdalene Adhiambo Omollo

Respondent

Ruling

Notice Of Motion Application 1. The notice of motion application dated 14th September, 2023 is filed pursuant to Rule 6 of the Co-operative Tribunal (Preface and Procedure) Rules 2009, order 2 Rule 15(1)(d), order 13 Rule 2 of the Civil Procedure Rules seeking orders that: -i.The Respondent’s Statement of Defence dated 21st July, 2023 be stuck out for being an abuse of the Tribunal process as it is filed by Advocates who are not on record,ii.Judgement on admission be entered in form of the Claimant against the Respondent as prayed in the statement of claim.The Application was based on the grounds that: -a.The firm of Okundi Ogonji Advocates who had filed the statement of Defence had never filed a Memorandum of Appearance nor a notice of appointment of advocates to come on record on behalf of the Respondent and as such do not have the necessary legal standing to move the Tribunal on behalf of the Respondent.b.The said Statement of Defence is not deserving of the attention and evidence of the Tribunal and should be struck out for being a gross abuse of the Tribunal process.c.Vide the letter dated 30th September, 2022 the Respondent admitted being in debted to the Claimant to the extent described in the statement of claim and made a payment proposal and as such her admission is plain clear an ambiguous and unequivocal.d.It is unnecessary and a waste of the Tribunal’s time and resources to proceed to trial considering the admission. This Tribunal gave orders on 15th September, 2023 with further orders given on 5th February, 2024 for the application to be canvassed by way of written submissions. We have now looked at the pleadings on submissions and the only two questions remaining for determination are”-i.Should the Statement of Defence be struck out, andii.Should the Tribunal enter judgement on admission based on a response to a demand letter?

Should the Statement of Defence be struck out 2. The beginning point to consider as to whether to strike out the Defence is to answer the question of intent- whether the Respondent had the intention of defending the claim despite her advocate on record not filing a Memorandum of Appearance nor a notice of appointment of an advocate to come on record on her behalf.

3. It must be appreciated that service of summons to enter appearance and file a defence is crucial and in most cases court only. Interlocutory judgement in very clear of cases with both have not been done (No appearance has been filed). To mean the Respondent has shown no desire to defend the claim.In this particular case, it is clear that the respondent advocate did not file a memorandum of appearance nor a notice of appointment, but filed a Defence. A party who has made an effort to file a Defence for all intents and purposes, has signaled their intention to defend the claim and Article 159 (2) (d) of the Kenyan Constitution mandates this Tribunal to avoid the unnecessary miscarriage of justice sticking in some circumstances like this by sticking to procedures at the expense of justice. It is our considered decision that in the interest of justice filing of the Defence to show intent to proceed with defending the claim overwhelms the procedural technically of not filing a memorandum of appearing nor a notice of appointment and as such the prayer to strike out the Statement of Defence fails.

Should the Tribunal enter judgement and admission based on a response to a demand letter 4. It is settled law that any admission must be a reflection of conscience and deliberate act of which the party making it, must also show the intention to be bound by it. This therefore means that this Tribunal must examine the circumstances while the Respondent authored the letter in question and whether it was their intention at that point to be bound by it.To begin with order 13 Rule (2) of the Civil Procedure Rules leaves no doubt to that the admissions should be in pleading or part of pleadings and should be clear and binding as not to need further evidence in respect of the facts admitted.Second, the admission should be clear and unambiguous not inferential.In this particular case the Respondent admission is ambiguous- in a letter responding to the demand to party, the Respondent seems to admit to owing the Plaintiff and event suggests a payment plan, while in the Statement of Defence, the Respondent seems to deny.This leaves this Tribunal with no clear position as to whether the Respondent has admitted or not. It is imperative to note that order 13 Rule 2 of the Civil Procedure Rules mandates this Court to consider “pleadings or otherwise” and if we consider both the Response to the letter of demand and the Statement of Defence, our considered position is that there is no clear, plain and unambiguous position on admission and as such, we are not persuaded to enter judgement on admission.

Upshot 1. The Application Notice of Motion dated 14/9/2023 is found to be without merit and dismissed.

2. Cost in the cause.

3. Matter to come for Pretrial directions on 4/12/2024Orders apply to CTC 252 and CTC 254/2023

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk J. MutaiMrs. Mbaabu advocate for Claimant/ApplicantMagdalene Adhiambo – No appearanceHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024