[2024] KECPT 1184 (KLR)
The tribunal found that the interlocutory judgment was entered despite the respondent having filed the necessary documents to participate in the proceedings, including a memorandum of appearance, notice of appointment of advocates, and a notice of preliminary objection. The tribunal accepted the respondent's...
Source-derived case information.
- Citation
- [2024] KECPT 1184 (KLR)
- Parties
- Applicant: Stephen Gichuki Wachira; Respondent: Jared Omondi Ominde
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 578/E753 of 2023
- Procedural Posture
- Notice of Motion Application / Ruling on Application to Set Aside Interlocutory Judgment
- Outcome
- application allowed; interlocutory judgment set aside
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Interlocutory Judgment, Setting Aside Judgment, Service of Process, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Gichuki Wachira
Applicant
Jared Omondi Ominde
Respondent
Procedural Posture
Notice of Motion Application / Ruling on Application to Set Aside Interlocutory Judgment
Legal Issues
- 1 Whether the interlocutory judgment entered against the respondent should be set aside.
- 2 Whether failure of service and tribunal staff negligence justify setting aside the judgment.
Ratio Decidendi
The tribunal found that the interlocutory judgment was entered despite the respondent having filed the necessary documents to participate in the proceedings, including a memorandum of appearance, notice of appointment of advocates, and a notice of preliminary objection. The tribunal accepted the respondent's argument that there was a failure of service, as the mention notice was not served on him due to negligence by tribunal staff. The tribunal held that denying the respondent an opportunity to defend the claim would occasion injustice. Exercising its discretion in the interest of justice, the tribunal set aside the interlocutory judgment to allow the respondent to defend the suit.
Court Disposition
application allowed; interlocutory judgment set aside
Orders
- The Notice of Motion Application dated 6th December, 2023 succeeds.
- The interlocutory judgment entered on 22nd November, 2023 is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
Wachira v Ominde (Tribunal Case 578/E753 of 2023) [2024] KECPT 1184 (KLR) (25 July 2024) (Ruling)
Neutral citation: [2024] KECPT 1184 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 578/E753 of 2023
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
July 25, 2024
Between
Stephen Gichuki Wachira
Claimant
and
Jared Omondi Ominde
Respondent
Ruling
Notice Of Motion Application 1. The Notice of Motion Application dated 6th December, 2023 was filed under Section 3A of the Civil Procedure Act, Section 41(1) (a) and (2), 42 and 43 of the Small Claims Act seeking among others orders:a.Spentb.Spentc.That the Honorable Tribunal be pleased to stay the interlocutory judgment and all Consequential Orders pending hearing and determination of the Application.d.That the Honourable Tribunal be pleased to review, vary and/or set aside default interlocutory judgment and all Consequential Orders pending hearing and determination of the Application.e.That the Honourable Tribunal be pleased to deem the Notice of Preliminary Objection filed on 23. 10. 2023 as properly and duly filed.
2. The Application was supported by the Affidavit of Jared Omondi Ominde on the grounds that:a.The Interlocutory Judgment was entered on 27. 11. 2023 despite a Memorandum of Appearance, Notice of Appointment of the firm of Karithi Njagi and Company Advocates and the filing of a Notice of Preliminary Objection on the 23. 10. 2023. b.Through the negligence of the staff of the Tribunal, the mention notice of 22. 11. 2023 was never served upon the Respondent.c.The Respondent is desirous of defending the suit and he will suffer prejudice if the orders he is seeking are not allowed.
3. The Tribunal on 14. 12. 2023 gave directions for the Application to be served with further orders given on 7. 3.2024 for the Application to be canvassed by way of written submissions.
4. The Respondent filed his written submissions on 3. 5.2024 and argued among others that negligence was committed against him when the tribunal staff who are obligated by the judiciary e-filing manual to acknowledge documents, did not do the same.
5. It was also the Respondent’s argument that personal service to him was never effected on compliance with order 5 Rule 8 (1) of the Civil Procedure Rules.
6. We have considered the pleadings and the only question remaining for determination is as to whether this tribunal should set aside the interlocutory judgment entered against the Respondent.
Should the interlocutory judgment entered against the respondent be set aside? 7. The decision to set aside or not set aside an interlocutory judgment is a matter of courts discretion. That discretion is exercised in the interest of justice to the parties to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error, but is not designed to assist a party who has deliberately sought whether by evasion or otherwise, to obstruct or delay the course of justice.
8. In this particular case, we have considered the chain of events and analyzed the pleadings and evidence adduced and it is our considered view that injustice will be occasioned to the Respondent, if we do not set aside the interlocutory judgment and allow him to defend the claim.
Final Ordersi.The Notice of Motion Application dated 6th December, 2023 succeeds.ii.The Interlocutory judgment entered on 22nd November, 2023 is set aside.iii.Costs in the cause.iv.Mention for further directions on 7. 10. 2024.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024TRIBUNAL CLERK JONAHBosire for RespondentStephen Gichuki 1st ClaimantHON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024