[2021] KECPT 261 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.54 OF 2019

UNIVERSAL TRADERS SACCO...................CLAIMANT

VERSUS

PAUL MUOKI MUYA................................RESPONDENT

RULING

1. The Application for determination is one dated 3. 12. 2020 filed on 4. 12. 2020 seeking for orders:

a.That the Application be certified as urgent and be heard exparte in the first instance.

b.That the Honourable court be pleased to order stay of execution of the decree of this Honourable court pending the hearing and determination of this Application.

c.That the Honourable court be pleased to set aside the judgment and decree issued in this matter in its entirely.

d.That the Respondent be granted leave to file defence and the Respondent be supplied with all the pleadings to enable him file a defence.

e.That the Honourable court be pleased to make further/other orders as it may deem fit in the circumstances.

The same is premised on the grounds on the face of the Application stating inter alia.

1. The Respondent was not served with summons or any pleading.

2. The judgment was not brought to the Applicant’s attention as no notice of entry of judgment was served upon him and it was not presented upon the Applicant.

3. The Applicant has been condemned unheard.

2. The Respondent filed Replying Affidavit in opposition to the Application. The same was sworn by Dominic Mutunga on 22. 2.2021 sworn on 4. 3.2021 stating the Application is based on falsehoods and that the Applicant was duly served with summons and chose to ignore the same.

He did not file a Statement of Defence and the same is not attached in his Application. The Claimant/Respondent note that the service was proper done by a certified Process Server.

If the orders in the Application are issued in particular Order b,c, and d the Claimant has not come to this court with clean hands.

3. Analysis

The issue of service has been raised by both Applicant and Respondents. Order 5 Rule 3 Civil Procedure Rules 2010 deals with issue of service of summons. The court has to exercise its discretion judiciously when setting aside judgment.

In the case of Chemwolo – vs- Mumia Sugar Company Limited -vs- Augustine Kubinde[1982]KAR 1036 the principles for setting aside interlocutory judgment emphasizing that discretion is unconditional and when exercising it, the trial Magistrate exercised discretion judiciously to avoid injustice or hardship caused by excusable mistake or error not to assist the Respondent to obstruct or delay the cause of justice.

4. The Applicant states he was never served and we note he does not make an Application for cross examination of the process server if at all in the matter at hand which would have assisted court in determination of the Application.

While the Claimant/ Respondent aver there was a deliberate failure to enter appearance and defence.

In the case ofKabitha – vs- Mucheru HCC.NO.82 of 2002 Nakuru (Musinga J)as he was then had expressed the principle,

“ (with ) respect to the trial magistrate, she had no discretion to exercise in the circumstances of the case since there was no service at court and as earlier said the default judgment had to be set aside as a matter of right. Discretion would have arisen if service was proper and there had been, for example, delay in entering appearance, where there is no service of summons to enter Appearance, an applicant does not have to show that he has an arguable Defence, so as to persuade the court to set aside an ex-parte judgment. In such circumstances the court is under a duty to remedy the situation and uphold the integrity of the judicial process. “

5. Notice of entry of judgment was not served on Respondent/Applicant as per Order 22 Rule 6 Civil Procedure Rules 2010.

We take note that nothing on record indicate the Respondent deliberately sought by way of evasion or otherwise to delay or obstruct the course of justice. With all the submissions made by counsel we find justice is better served when the parties are accorded an opportunity to be heard on merit.

For the reasons aforementioned in light of Article 50 Constitution of Kenya 2010.

The Application is allowed as prayed.

1. Judgment entered on 27. 5.2019 is set aside.

2. The Respondent is granted 10 days from today to file and serve a Defence and their documents.

3. Both parties to ensure they have complied with Order II Civil Procedure Rule.

4. Mention on 19. 10. 2021 to fix matter for hearing.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JULY, 2021.

Hon. B. Kimemia Chairperson Signed 15. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 15. 7.2021

Mr. Gitonga Kamiti Member Signed 15. 7.2021

Tribunal Clerk C. Maina

Nzioka for the Respondent

Janet Jackson Advocate - no appearance

Hon. J. Mwatsama Deputy Chairperson Signed 15. 7.2021