[2024] KECPT 251 (KLR)

Vision Point Sacco Ltd v Magak (Tribunal Case 615 of 2019) [2024] KECPT 251 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 251 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 615 of 2019

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

March 7, 2024

Between

Vision Point Sacco Ltd

Claimant

and

Lameck Kiage Magak

Respondent

Ruling

1. This case goes way back to 2012 when the Plaintiff lent the Defendant a loan for the sum of Kshs 1,199,999/= which was to be paid for a period of 36 months at a monthly interest rate of 1% per month. The loan was secured by a Parcel of Land known as Eastkitutu/Botabori II/992. The Defendant serviced the loan to a point and started defaulting when the outstanding balance was Kshs 452,022. 93/=. On 14th October, 2019 when the Plaintiff moved to court, the outstanding balance plus interest was Kshs 629,216. 60/=.

2. The Plaintiff later on 10th February, 2021 under Order 10 Rule 6 of the Civil Procedure Rules requested this Tribunal to enter Judgement in default of the Defendant entering appearance and filing a statement of Defence ad on 13th October, 2021, a Decree was signed for the sum of Kshs 898,218. 75/=The decree holder later made application to this Tribunal for personal arrest and committal to Civil Jail of the Defendant and on 7th December, 2022, this Tribunal issued warrant of arrest.On 17th February,2023, the Defendant filed an Application seeking among others that:i.There be stay of execution of the judgement and decree of this Tribunal pending the determination of the Application inter-parties.ii.The warrant of arrest issued be stayed and/ or set aside.iii.That the judgement entered against the Defendant be set aside and the Defendant be allowed to defend the suit.

3. The Application was based on the Claim that the Defendant was never served with sermons to enter appearance and the claim, and that he was not aware of the suit until 3rd December, 2022 when he was informed by his wife that someone had visited their house with court papers and left documents with their neighbor’s child to pass over the documents to her.Second, the Defendant is also making the Application on the basis that the Notice to Show Cause proceedings were held without him or hid advocate being heard.We have considered the pleadings and the submissions and set two questions for determination:1. Whether this Tribunal should set aside its judgement inthis matter with all other consequential orders and grant leave to the Defendant to file this Defence and defend the suit.2. Whether the warrant of arrest this Tribunal issued should be stayed or set aside.

Whether thus Tribunal should set aside its Judgement in this matter with all other consequential orders and grant leave to the Defendant to file their Defence and defend the suit. 4. The beginning point in an Application for setting aside Judgement is to appreciate that it is an exercise of discretion which must be exercised in circumstances that seem just, fair, right, equitable and reasonable. The Court is duty bound to consider or review the whole situation and exercise its discretion in a judicious way to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error.

5. In Bouchard International (services) Limited v M’mwereria [1987] KLR, the court said:A judge has to judge the matter in the light of all facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement if necessary, upon terms to be imposed. Hence the justice of the matter, the good sense of the matter, where certainly matters for the judge. It is an unconditional unfettered discretion, although it is to be used with reasons, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a Defence on the merits, namely a prima facie Defence which should go to trial or adjudication."

6. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent, it is to have the power to revoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure”

7. In this particular case, first in as much as the issue of service has been raised, we have considered the ­­chronology of events and it is our position that the Defendant was aware of the proceedings before this Tribunal. Service may not have been done properly, but he was aware of the proceedings and for whatever reason, decided not to be a party to them.

8. Second, we have also considered the fact that the Defendant is neither disputing owing the Plaintiff nor the figures and as such we honestly don’t see any prima facie issue he is raising that should go for trial or adjudication. He has admitted that he is in debt and even the Plaintiff has confirmed that he has made attempts to pay during the course of this trial.

9. Third, this loan was taken way back in 2012 and if it was to be paid in 36 months, it should have been fully paid by 2016 and to set aside this Tribunal’s judgement and make the Plaintiff to wait longer will not be equitable or in the interest of justice or Public Policy. The Plaintiff has already waited for more than seven (7) years longer than he should have to be paid what is owed.

10. As such, this Tribunal will not exercise its discretion to make him wait any longer that it is necessary or as justified.

Whether the warrant of arrest this Tribunal issued in this matter should be stayed or set aside. 11. We have considered the issue of the Defendant having a medical condition involving his heard and the fact that he is in a situation where he constantly needs medical attention and supervision and as such under the circumstances if we don’t set aside or stay the Warrants of Arrest, it may cause some hardship to the Defendant.

12. To expedite this matter given that we see no reason to disturb our initial judgment and having also considered the fact that the Defendant has tried paying some amounts during the course of this suit, we exercise our discretion as follows:1. Warrant of Arrest is hereby stayed for 3 months. The decretal amount(Kshs 898,218. 75/=) be settled in 6 months and paid in installments on or before the 10th of every month with the first payment made before the 10th of April, 2024 and on every 10th of every month till payment in full.2. In default of payment of any one of the installments, execution to issue.

RULING JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. ..................................HON. BEATRICE KIMEMIACHAIRPERSON..................................HON. BEATRICE SAWEMEMBER..................................HON. FRIDAH LOTUIYAMEMBER..................................HON. PHILIP GICHUKIMEMBER..................................HON. MICHAEL CHESIKAWMEMBER..................................HON. PAUL AOLMEMBERTribunal Clerk JemimahMiss Kiteng’e for RespondentNo appearance for Claimant