[2025] KECPT 372 (KLR)

Waiganjo v Thiriku Coffee Growers Co-operative Society Limited & 2 others (Tribunal Case E016. 859 of 2023) [2025] KECPT 372 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KECPT 372 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E016. 859 of 2023

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

July 10, 2025

Between

Cyrus Karoki Waiganjo

Claimant

and

Thiriku Coffee Growers Co-operative Society Limited

1st Respondent

Taifa Sacco Society Limited

2nd Respondent

David Maina Ndirangu

3rd Respondent

Ruling

1. This ruling dispenses with two Notice of Motion Applications, one dated 10th August 2024 and the other one dated 13th August 2024.

Application dated 10th August 2024 2. The Application dated 10th August 2024 is filed by the 2nd Respondent and is supported by an Affidavit sworn by one Margaret Kibe, the 2nd Respondent’s Nyeri’s Branch Manager, and brought under Article 159 of the Constitution of Kenya, Order 10 Rule 11, Order 22 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, Sections 3, 3A, 1A, &1B of the Civil Procedure Act, and all other enabling provisions of the law. The application seeks the following orders:1. That the application is certified urgent and heard exparte in the first instance.2. That this Honourable court be pleased to order a stay of execution of the claimant/respondent’s Notice to repossess dated 8th August 2024 and/or proclamation of attachment/repossession/distraint of moveable property notice issued or the sale thereof of any of the proclaimed motor vehicle being of registration number KBQ 911U, or any other property belonging to the 2nd Respondent/Applicant listed as 10 metallic cabinets, 30 office chairs, 3 television sets colored, 4 water dispensers, 20 office desks and 10 printers by way of a public auction or by any other means whatsoever pending the hearing and determination of this Application and subsequent suit;3. That the Claimant/Respondent herein , the auctioneer and/or its servants agents, or otherwise, be restrained by this Honourable court, from repossessing attaching, and/or selling the 2nd Respondent/Applicant ‘s property being motor vehicle of registration number KBQ 911U and property being listed as 10 metallic cabinets, 30 office chairs, 3 television sets colored, 4 water dispensers, 20 office desks , reception desks, 3 conference tables, 20 conference chairs, 20 computers and 10 printers or any other property belonging to the 2nd Respondent/Applicant by way of public auction or otherwise as indicated and/or threatened in the collection/repossession orders dated 8th August, 2024 or at any other time thereafter to dispose of, alienate, transfer and/or otherwise interfere with the 2nd Respondent/applicant’s interest in the said property , pending the hearing and determination of the application and the subsequent suit.4. That it was only after service of the proclamation of attachment/repossession/distraint of moveable property notice that the 2nd respondent/applicant was made aware that there was a suit where he was mentioned as a 2nd Respondent that had been lodged against him by the Claimant/Respondent.5. That the 2nd Respondent/Applicant has never served with summons to enter appearance, any pleadings, mention or hearing notices by the claimant/respondent and that he only became aware of the existence of the suit on 8th august 2024 when he was served with a proclamation notice by the auctioneers.6. That it will be unjust, unfair and against the rules of natural justice , audi alteram partem , to be condemned unheard occasioning the 2nd Respondent/Applicant’s assets to be repossessed and subjected to a sale by public Auction.7. That 2nd Respondent/Applicant stands to suffer irreparable loss if the judgment is let to stand without being afforded an opportunity to defend himself.8. That the 2nd Defendant/Applicant has a viable statement of response to the Claimant’s/Respondent’s claim and it is only fair and just that he be afforded an opportunity that he defends the statement of claim as he has a meritorious case and also enable this Honourable court reach a just and fair finding based on the merit of the matter.9. That there is a sufficient cause, it is just and equitable that this application be heard and dispensed with on its merits.

Application dated 13th August 2024 3. The Application dated 13th August 2024 is filed by the 1st and 3rd Respondents and is supported by an affidavit sworn by one David Maina Ndirangu, the 3rd Defendant and the Chairman of the 1st Defendant, and brought under Article 1,2,3,47,48 Chapter 10 of the Constitution of Kenya 2010 (Under Order 12(7); O. 22 ; O45, O42(3) and O.46 of the Civil Procedure Rules 2010; Sections 1B, 3, 3A, 80, 95, 99, 100, of the Civil Procedure Act Cap 490 of the Laws of Kenya, Section 31, 32, 33, 34, 37 of the Cooperative Societies Act and all other enabling provisions of the law. The application seeks the following orders;1. That this Honourable Tribunal be pleased to certify this application as of extreme urgency, heard exparte and service be dispensed with in the first instance.2. That there be a stay of execution of the decree and Warrants of Attachments dated 7th August 2024 issued to Kentract Auctioneers pending the hearing and determination of the application and the suit herein.3. That this Honourable Tribunal be pleased to reinstate the matter and set it down for hearing on merit at the earliest dated possible.4. That the Honourable Tribunal be pleased to review its orders made on or about the 11th January 2024 entering interlocutory judgment against the defendants while the 1st and 3rd defendants had already appointed an advocate to act for them pending the hearing and determination of the application.5. That this Honourable Tribunal be pleased to set aside the directions and or orders made on or about 11th January, 2024 entering interlocutory judgment against the defendants as the 1st and 3rd defendants had already appointed an advocate to act for them pending the hearing and determination of the application.6. That the Plaintiffs/Respondents be compelled to serve upon the 1st and 3rd defendants and all pleadings to enable the said advocates prepare and defend the suit pending the hearing and determination of the application.7. That the defendants be given leave after order number 4 above to put in their Defence pending the hearing and determination of the application.8. That the Plaintiff be compelled to take the necessary steps to have the matter listed to mention for directions pending the hearing and determination of the application.9. That the alternative this Honourable Tribunal be pleased to grant leave to the Applicants to lodge an appeal against the orders made on the 11th January 2024 pending the hearing and determination of this application and of the suit.10. That costs of this application be paid on the 1st and 3rd defendants.

4. The application for is premised on the grounds on its face which are inter alia that: The Applicants admit that they were served with summons to enter appearance on or about the 13th September 2023, and that their advocates entered appearance on 18th September 2023. That the summons, however, were not accompanied by the pleadings, which they are yet to receive. That they were not served with a notice of entry of judgement before execution, nor correspondences between the Claimant and he court. Further, that should the Claim be for monies owed, there is a surcharge in place for the former Chairman of the 1st defendant.

5. In their submissions the 1st and 3rd Respondents contend that the Advocate should not have sworn the affidavit on behalf of his client. Further, they stressed that they were not served.

6. The Claimants on the other hand, in response to the Applicant’s submission submits that all the respondents were duly served with a demand letter dated 20th July 2020 before the filing of the claim. They further aver that the Respondent/Applicant was served and that they will be prejudiced if this court allows their application.

Issues for Determination 7. This court will determine the two applications together, since they relate to the same issue, that they were no served.

8. The application has presented the following issues for determination;i.Whether the Applicants have satisfied the court to set aside the summary judgement delivered on 11th January 2024.

Analysis 9. This Tribunal has considered the Application, the Response, the submission of the parties and the applicable law. The question before this Tribunal is whether the Applicant has convinced this Tribunal, on a balance of probabilities, to set aside the Summary judgement entered on 11th January 2024 and reinstate the Claim.

10. Order 10 Rule 11, on setting aside judgment provides that“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.”

11. The question before this Tribunal is whether it is just to exercise this discretion.

12. The Applicants claims that they were not served with the pleadings, while there is an affidavit of service on record. The affidavit of service filed by a court process server is enough evidence to show that service was duly done. This was evidenced in the case of Shadrack Arap Baiywo – vs – Bodi Bach [1987] eKLR, where the Court of Appeal held as follows:-There is a presumption of services as stated in the process server’s report, and the burden lies on the party questioning it, to show that the return is incorrect. But an affidavit of the process server is admissible in evidence and in the absence of contest it would normally be considered sufficient evidence of the regularity of the proceedings.

13. It is now upon the person alleging that service was not done to show that indeed such affidavit of service was defective. In the instant case, 1st and 3rd Respondents claim that they were only served with the summons to enter appearance, while the 2nd Respondent claims that he was not served at all.

14. In their Response, the Respondent avers that it indeed served the Applicants. On perusing the file, there are indeed return of service dated 26th September 2023 that have been filed but not stamped received since the Claimant claims that they were served electronically via email and WhatsApp.

15. Upon perusing the Affidavit of Service, and the emails sent, there is indeed an attachment named ‘Receipt, Summmons to enter appearance & supporting documents”. The 1st and 3rd Respondent do not dispute the service but aver that they did not receive the pleadings. The 2nd Respondent claims they never received the email at all. They have gone ahead and disputed that the email address md@taifasacco.co.ke belongs to them and that their right email is info@.org, and attached a picture copy of their website that shows the email info@.org . The 1st and 3rd Respondent’s having been served with the summons to enter appearance, would have gone ahead to find out what the service is all about.

16. Flowing from above, we are inclined to believe that the 2nd Respondents did not receive the summons to enter appearance and the pleadings, while the 1st and 3rd Respondent received the summons to enter appearance. However, since all the Respondents’ case seems to be related to each other, and in order to properly determine the matter at hand we will allow both applications in the interest of justice.

17. Flowing from above, this Tribunal hereby make the following orders;a.Notice of Motion Applications dated 10th August 2024 and 13th August 2024 are merited and allowed in the following terms.b.The 1st and 3rd Respondent ordered to pay the Claimant thrown away costs of Kshs. 10,000/= eachc.The Respondents are to file their Defence and other requisite documents within 14 days from today.d.Claimant to file supplementary documents if need be.e.Costs in the cause.f.Mention for Pre-trial directions on 6. 10. 2025.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 10. 7.2025HON. BEATRICE SAWE MEMBER SIGNED 10. 7.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 10. 7.2025HON. PHILIP GICHUKI MEMBER SIGNED 10. 7.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 10. 7.2025HON. P. AOL MEMBER SIGNED 10. 7.2025Tribunal Clerk KokiGori advocate for the Claimant/RespondentWambungu advocate for 1st and 3rd Respondent – No appearanceWachira Muturi advocate for 2nd RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 10. 7.2025