https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/304

 **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAKURU** **TRIBUNAL CASE NO. E025 OF 2026** **(Coram: Hon. J. Mwatsama - Chairperson, Hon. B. Sawe - Member, Hon. F. Lotuiya - Member, Hon. M. Chesikaw - Member and Hon. P. Aol - Member.)** **VISION AFRIKA DT SACCO SOCIETY LTD.....................CLAIMANT** **VERSUS** **REGINA WAITHERA....................................................RESPONDENT** **RULING** The Notice of Motion Application dated 6th June, 2026 is brought under Section 1A, 1B, 3A of the Civil Procedure Act, Section 159 of the Constitution 2010, Order 40 Rule 1 & 2, Order 51 Rule 1, Order 10 Rule 11 of the Civil Procedure Rules 2010 and all other enabling provisions of the law seeking among others: 1. Spent 2. That the court be pleased to issue a Temporary Injunction to restrain the Claimant and Ever-ready Auctioneers from attaching the goods proclaimed on 3rd June 2026 pending interparties hearing. 3. That the court be pleased to set aside the ex-parte judgment entered on 31st March 2026 and all consequential orders flowing therefrom. 4. That the Honourable Tribunal be pleased to make such further or other orders as it may seem just and expedient in the circumstances prevailing in the matter. The Application was based on the Affidavit of Regina Waithera on the Grounds that: 1. That the claimant has obtained a decree and proceeded to proclaim the goods through Ever-ready Auctioneers. 2. That the goods proclaimed do not belong to Regina Waithera but to Victor Nyakwara Nyauntu who is not a party to these proceedings. 3. That there was an oversight on the part of my advocate to file a defense as he was unwell. 4. That the Tribunal has inherent powers to set aside the *ex-parte* Judgment for interest of Justice as the total amount claimed was fully paid and the Respondent properly discharged from the society. 5. That the Respondent will be condemned unheard and will suffer financial loss if execution will be allowed to proceed as the goods proclaimed do not belong to the Respondent but to Victor Nyakwara Nyauntu. The Claimant filed Grounds of Opposition dated 10th June, 2026 under Order 51 Rule 14 (1)(c) of the Civil Procedure Rules 2010 stating among others: 1. THAT the Respondent’s Application is misconceived and a waste of judicial time. 2. THAT there is no valid reason advanced to permit the court to set-aside the *ex-parte* judgement of 31st March, 2026 since there is no denial of service of summons to enter appearance and plaint. 3. THAT the explanation given by the Respondent claiming indisposition of counsel which resulted in failure to file defense is a miscalculated afterthought having been triggered by the execution process since there is no proof exhibited on ailment of counsel and the period of ailment by counsel. 4. THAT the Respondent has not exhibited a *prima-facie* defence with triable issues so as to necessitate the court exercise its discretion in setting-aside the ex-parte judgement. 5. THAT the Respondent has failed to comply with the court order of 7th June, 2026 by exhibiting that she has fully repaid the full amount advanced of Kshs. 740,970/= now standing at Kshs. 824,273/= as per warrants of attachment of 31st March, 2026 thus on the basis of non-compliance with the said court order, the Respondent is undeserving of any other orders and/or further audience by the court. 6. THAT the Respondent’s Application is incompetent, bad in law and an abuse of the court process. 7. THAT the Respondent’s Application should be dismissed with costs. This Tribunal on 11th June, 2026 gave directions for the Application to be canvassed by way of Written Submissions. As at the time of writing the ruling, both parties had not filed their written submissions. We have considered the Application and the grounds of opposition and in our humble consideration, only two issues remain for determination as follows: 1. Whether the test for grant of Temporary Injunction has been satisfied, and 2. Whether the test for setting aside an *ex-parte* judgement has been satisfied **Whether the test for grant of Temporary Injunction has been satisfied** The guide to granting or denying the prayer for temporary injunctions were set out in the landmark case of **Giella v Cassman Brown & Co. Ltd [1973] EA 358**, requiring the party applying for Temporary Injunction orders to: 1. Show that they have established a *prima facie* case, which is strong enough to proceed to trial. 2. Demonstrate that they are likely to suffer irreparable harm, which is significant and non-monetary in the sense that the Applicant cannot be compensated a monetary award if the injunction is not granted. 3. A demonstration of a balance of convenience in the sense that if there is a doubt in regard to the first two conditions, the court will consider which party would suffer more from either granting or denying the injunction. The main purpose of a Temporary or Interlocutory Injunction is to preserve the status quo until a final decision is made. According to the Respondent, she no longer owes the Claimant as she paid her loan in full and was properly cleared out by the management. The Claimant on their end have disputed the facts as presented by the Respondent and have attached the Respondent’s Real Time Statement. According to the Claimant, the Respondent has not demonstrated or presented any documentation on the claims she is making of settling the loan, neither has she filed a Statement of Defence raising triable issues and as such has not satisfied the requirement of presenting a *prima facie* case with the probability of success. We have taken note of three things. First, the fact that the Respondent has not filed a draft Defence raising triable issues. Second, the fact that the Respondent has also not attached any document demonstrating that he paid the loan, or was cleared out of the Sacco by the management. And third, the fact that Victor Nyakwara Nyauntu on 12th June, 2026 filed an Objector Application stating that the proclaimed motor vehicle and goods are his. Given that Victor Nyakwara Nyauntu has only attached one document showing the ownership of the motor vehicle KDG 871P and not for any other good, we can only grant a temporary injunction against the sale of the motor vehicle and not any other good, as we can’t grant injunctive orders or come to the conclusion that *a prima facie* case has been presented based on hearsay. What constitutes a *prima facie* case was explicitly explained in the case of **[Mrao Ltd v First American Bank of Kenya & 2 Others](https://new.kenyalaw.org/akn/ke/judgment/keca/2003/175%22%20%5Ct%20%22https%3A//new.kenyalaw.org/akn/ke/judgment/kehc/2025/11865/_blank), [2003]KLR 125**, where the Court of Appeal held that: ***“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter”*** Having found that the Respondent has failed to establish a *prima facie* case to warrant grant of Temporary Injunction on the other goods proclaimed, this Tribunal finds that there is no need to consider and address that other two conditions required, as the Court of Appeal in **Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] 1 EA 86**, made it clear that: ***“The sequence of steps to be followed in the enquiry into whether to grant an Interlocutory Injunction is sequential so that the second condition can only be addressed if the first one is satisfied.”*** Based on how the two cases have been presented, we are not persuaded that we need to grant Yemporary Injunctive orders at this stage for those other goods. **Whether the test for setting aside an ex-parte judgement has been satisfied** The first consideration on setting aside an ex-parte judgement is as to whether the judgement in question is regular or irregular. The distinction between a regular and an irregular judgement was well explained by the Court of Appeal in[**James Kanyiita Nderitu & another v Marios Philotas Ghikas & another**](https://kenyalaw.org/akn/ke/judgment/keca/2016/470)**[2016] KECA 470 (KLR**) where it was held that: ***“From the outset, it cannot be gainsaid that a distinction has always existed between a Default Judgment that is regularly entered and one, which is irregularly entered. In a regular Default Judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he had failed to enter appearance or to file defence, resulting in Default Judgment. Such a Defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default judgment and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside the Default Judgment, and will take into account such factors as the reason for the failure of the Defendant to file his Memorandum of Appearance or defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer; whether on the whole it is in the interest of justice to set aside the default judgment, among other. See Mbogo & Another v Shah (supra), Patel v E.A. Cargo Handling Services Ltd (1975) EA 75, Chemwolo & Another v Kubende [1986] KLR 492 and CMC Holdings v Nzioki [2004] 1 KLR 173).*** ***In an irregular default judgment, on the other hand, judgment will have been entered against a defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justitiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such judgment is set aside as of right, and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.”*** In this particular case, it is not in doubt that the Respondent was served and as such, the judgement of the Tribunal is regular. This Tribunal has considered the reasons given by the Respondent for the failure to file a Defence (sickness of her Advocate) and the fact that even after filing the Application, the Respondent has not endeavored to file a Defence till today or to file any documents supporting her version of events. That being the case, this Tribunal has no evidential material more that hearsay to persuade it to set aside its judgement, and as such, it won’t. **Final Orders** 1. The Notice of Motion Application dated 6th June, 2026 fails with costs 2. Temporary Orders against the sale of Motor Vehicle **Registration Number KDG871P** granted pending the determination of the Objector Application dated 12th June, 2026. Ruling dated and delivered *virtually* at **Nairobi** this **16th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed 16/7/2026** **Hon. B. Sawe Member Signed 16/7/2026** **Hon. Fridah Lotuiya Member Signed 16/7/2026** **Hon. M. Chesikaw Member Signed 16/7/2026** **Hon. P. Aol Member Signed 16/7/2026** Court Assistant – Koki Kanyi Ngure advocate for the Claimant Murugori advocate for the Respondent – No appearance Mention on 23rd September, 2026 to confirm filing of a response to the Objection Application; notice to issue to the Respondent’s Counsel. **Hon. J. Mwatsama Chairperson Signed 16/7/2026**