[2021] KECPT 15 (KLR)
The Tribunal found that the respondent had not been properly served with the summons to enter appearance prior to the entry of judgment, as the evidence showed that the respondent only became aware of the proceedings after judgment had been entered. The Tribunal further found that the draft defence annexed by the...
Source-derived case information.
- Citation
- [2021] KECPT 15 (KLR)
- Parties
- Applicant: Victor Megonge Gutto; Respondent: David Otieno
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 106 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
- Outcome
- application allowed; ex parte judgment set aside; matter to proceed to full trial
- Legal Topics
- Setting Aside Ex Parte Judgment, Default of Appearance, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Megonge Gutto
Applicant
David Otieno
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Ex Parte Judgment
Legal Issues
- 1 Whether the ex parte judgment entered against the respondent should be set aside.
- 2 Whether the respondent was properly served with summons to enter appearance before judgment was entered.
- 3 Whether the respondent's draft defence raises triable issues warranting a full hearing.
Ratio Decidendi
The Tribunal found that the respondent had not been properly served with the summons to enter appearance prior to the entry of judgment, as the evidence showed that the respondent only became aware of the proceedings after judgment had been entered. The Tribunal further found that the draft defence annexed by the respondent raised justiciable points that warranted a full hearing. In the interest of justice and to allow the matter to be determined on its merits, the Tribunal exercised its discretion under Order 10 Rule 11 of the Civil Procedure Rules to set aside the ex parte judgment and all consequential orders. The Tribunal directed that the matter proceed to full trial, with both...
Court Disposition
application allowed; ex parte judgment set aside; matter to proceed to full trial
Orders
- The respondent's application dated 20th April 2021 is allowed.
- The respondent to file and serve their defence, witness statements, and list of documents within 7 days from the date hereof.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 106 OF 2021
VICTOR MEGONGE GUTTO..........................................................CLAIMANT
VERSUS
DAVID OTIENO...........................................................................RESPONDENT
RULING
1. The Respondent has filed A Notice of Motion Application dated 20th April 2021, seeking orders to set aside the Orders made by this Tribunal on 7th April, 2021, and all consequential orders thereto. The facts are that the Respondents neither enter appearance, nor filed a Defence as they allege that they were only served with Summons to Enter Appearance after the Judgment, on 15th April 2021.
2. The Respondents have annexed a Draft Defence and appurtenant documents to demonstrate that they do have a triable case. The Respondents were spurred into action when they discovered Judgment had been entered against them and execution was imminent, as that was the first time that they were setting their eyes on the Pleadings and Summons to Enter Appearance, which have been signed and dated 15th April 2021 by the Respondent.
3. We have read and considered the evidence on record, and on a balance of probability, we find in favour of the Respondent that it will be in the interest of justice that the case be heard on its merits. We have also looked at the Draft Defence and we find that it raises justiciable points, which makes it necessary for this Tribunal to tamper with its erstwhile Judgment.
4. This Tribunal thus invokes the provisions of Order 10 Rule 11 of the Civil Procedure Rules 2010which provide as follows:
“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.”
5. We therefore give the Respondents the benefit of doubt, and hereby set aside our Ruling of ex parte Judgment in Default of Appearance. In the interest of justice, we find that the Orders sought should be granted and the Application dated 20th April 2021 be allowed.
We direct that the Claim proceeds to full trial to ascertain the merits of the case.
ORDERS
We therefore Order as follows:
a. The Respondents’ Applications dated 20th April 2021 be and is hereby allowed;
b. The Respondents to file and serve their Defence, witness statements and list of documents within 7 days from the date hereof;
c. The Claimant is granted leave to file and serve a supplementary list of documents and witness statements within 7 days from the date of service;
d. Parties to ensure strict compliance of Order 11 of the Civil Procedure Rules within 30 days hereof;
e. Costs be in the Cause;
f. Mention for directions on 24. 1.2022. notice to issue
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF NOVEMBER, 2021.
Hon. B. Kimemia Chairperson Signed 25. 11. 21
Hon. J. Mwatsama Deputy Chairperson Signed 25. 11. 21
Mr. Gitonga Kamiti Member Signed 25. 11. 21
Mr. B. Akusala Member Signed 25. 11. 21
Mr. P. Gichuki Member Signed 25. 11. 21
Tribunal Clerk R. Leweri
Abongo holding brief for Awiti for the Applicant/Respondent
Hon. J. Mwatsama Deputy Chairperson Signed 25. 11. 2021