[2023] KECPT 813 (KLR)
The Tribunal found that the reasons advanced by the Respondent for failing to enter appearance and file a defence were not convincing, and the defence filed did not raise real triable issues, particularly as it failed to provide evidence of loan repayment. However, considering the length of time since the...
Source-derived case information.
- Citation
- [2023] KECPT 813 (KLR)
- Parties
- Applicant: Universal Traders Sacco Limited; Respondent: Cinty Mueni Maluka
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 259 of 2019
- Procedural Posture
- Tribunal Application / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- Application to set aside interlocutory judgment allowed; interlocutory judgment set aside; defence deemed duly filed upon payment of fees; thrown away costs awarded to Claimant; pre-trial directions scheduled.
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Setting Aside Judgment, Service of Process, Loan Recovery, Default Judgment, Triable Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Universal Traders Sacco Limited
Applicant
Cinty Mueni Maluka
Respondent
Procedural Posture
Tribunal Application / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the Tribunal should set aside the interlocutory judgment of 26th September, 2019.
- 2 Whether the Tribunal should grant an interim order of stay of execution of the notice to show cause dated 1st December, 2021.
- 3 Whether the Respondent should be granted leave to file Defence.
Ratio Decidendi
The Tribunal found that the reasons advanced by the Respondent for failing to enter appearance and file a defence were not convincing, and the defence filed did not raise real triable issues, particularly as it failed to provide evidence of loan repayment. However, considering the length of time since the interlocutory judgment and the interests of justice, the Tribunal exercised its discretion to set aside the interlocutory judgment. The defence was deemed duly filed upon payment of requisite fees, and thrown away costs were awarded to the Claimant. The Tribunal balanced the need for finality in litigation with the principle that disputes should be determined on their merits, ultimately...
Court Disposition
Application to set aside interlocutory judgment allowed; interlocutory judgment set aside; defence deemed duly filed upon payment of fees; thrown away costs awarded to Claimant; pre-trial directions scheduled.
Orders
- The interlocutory judgment of 26th September, 2019 is set aside.
- The Defence is deemed as duly filed on payment of requisite fees.
Full Case Text
Judgment text and source record
27 paragraphs
Universal Traders Sacco Limited v Malika (Tribunal Case 259 of 2019) [2023] KECPT 813 (KLR) (31 August 2023) (Ruling)
Neutral citation: [2023] KECPT 813 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 259 of 2019
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 31, 2023
Between
Universal Traders Sacco Limited
Claimant
and
Cinty Mueni Maluka
Respondent
Ruling
Facts of the Case 1. The Respondent is a member of the Claimant Sacco with membership number 000732. Around 2010, the Claimant advanced the Respondent credit facilities through her request and as at 6th February, 2019 the outstanding loan amount plus interest stood at Kshs. 426, 186. 90/=.
2. Despite notice of intention to sue, the Respondent still failed or refused to pay necessitating the Claimant to file a suit in court for recovery on 15th May, 2019.
3. On 20th September, 2019, the Claimant made an Application for Interlocutory Judgment based on the fact that the Respondent had failed to enter appearance despite being served with a statement of claim, verifying affidavit, list of witnesses and list of documents.
4. On 26th September, 2019 this Tribunal entered judgment against the Respondent with a decree being issued on 30th September, 2020 for the sum of Kshs. 506,970. 85/=.
5. The decree holder in February, 2022 later moved to court for show cause orders seeking personal arrest and committal to civil jail of the Respondent.
6. In response to this, the Respondent appointed the firm of Nzilani Muteti who filed a notice of motion under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules seeking to set aside the judgment entered on 26th September, 2019 claiming that it was entered wrongfully against her as she was never served with the summons to enter appearance and also that she has a good Defence with triable issues that have a very high possibility of success.
Issues for DeterminationiWhether the Tribunal should set aside the interlocutory judgment of 26th September, 2019. ii.Whether the Tribunal should grant an interim order of stay of execution of the notice to show cause dated 1st December, 2021. iii.Whether the Respondent should be allowed or granted leave to file Defence.Order 10rule 4 (1) of the Civil Procedure Rulesprovides that:(1)Where the plaint makes a liquidated demand only and the Defendant fails to appear on or before the day fixed in the summons or all the Defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or Defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.”
7. The Court of Appeal in James Kanyiita Nderitu & Another [2016] eKLR sort to draw the distinction between a default judgment that is regularly entered and one which is irregularly entered, and it was the opinion of the court that the factors to be considered on whether to set aside a judgment should include:i. Reason for failure to file the Memorandum of Appearance or Defence,ii. Length of time that has elapsed since the default judgment was entered,iii. Whether the Intended Defence raises triable issues,iv. The respective prejudice each party is likely to suffer, andv. Whether on the whole it is in the interest of justice to set aside the judgment.This Tribunal has considered the five areas and notes the following: That the reason (s) given for failure to enter appearance and file Defence are not convincing,
That the duration of time between filing the Application for setting aside and when the Interlocutory Judgment was entered is approximately 3 years.
That the filed Defence fails to even provide evidence of payment of the loan and as such does not raise real triable issues.
That the Claimant will not suffer any serious prejudice and is not opposed to being paid throw away costs in the event of setting aside.
We have considered the Application and looked at the submissions and hereby in the interest of justice the following orders:i. We set aside the Interlocutory Judgment of 26th September, 2019. ii. The Defence is deemed as duly filed on payment of requisite fees.iii. We award thrown away cost in the tune of Kshs. 20,000/= in favour of the Claimant.iv. Mention for Pre-trial directions on 11. 12. 2023. Notice to issue.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023Hon. Beatrice Sawe Member Signed 31. 8.2023Hon. Fridah Lotuiya Member Signed 31. 8.2023Hon. Philip Gichuki Member Signed 31. 8.2023Hon. Michael Chesikaw Member Signed 31. 8.2023Hon. Paul Aol Member Signed 31. 8.2023Tribunal Clerk JemimahNzuva advocate for the Respondent.No appearance by ClaimantJanet Jackson LLP- No appearanceHon. Beatrice Kimemia Chairperson Signed 31. 8.2023NRB.CTC.NO. 259 OF 2019 RULING A.W.N 0