[2021] KECPT 277 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.529 OF 2019

WAKENYA PAMOJA SACCO SOCIETY LIMITED....CLAIMANT

VERSUS

EVANS NDEMO............................................................. RESPONDENT

RULING

1. The matter for determination is the Respondent’s Notice of Motion under certificate of urgency dated 1. 3.2021 filed on the same date seeking the following Orders:

1. Spent

2. That pending the hearing and determination of the instant Notice of Motion, the Honourable Co-operative Tribunal be pleased to grant an Interim Order of Stay of Execution of the Judgment and Decree herein together with all Consequential Orders.

3. That pending the hearing and determination of the instant Notice of Motion, the Honourable Co-operative Tribunal be pleased to grant an order of Stay of Execution of the Judgment and Decree herein together with all Consequential Orders.

4. The Honourable Co-operative Tribunal be pleased to vary, rescind and/or set aside the Interlocutory Judgment entered against the Respondent/Applicant together with all Consequential Orders thereto.

5. That consequent to prayer (3) herein above being granted the Honourable Co-operative Tribunal be pleased to grant leave to the Respondent/Applicant to file Statement of Defence out of time in terms of the draft annexed Defence.

6. Costs of this Application do abide the Appeal.

2. Based on the grounds on the face of the Application and supported by the Affidavit of Evans Ndemo the Respondent herein.

3. The Claimant filed a Replying Affidavit deponed on 13. 4.2021 filed on 16. 4.2021.

4. The Respondent filed a Supplementary Affidavit on 24. 5.2021.

5. The Application was ordered to be dispensed with by way of Written Submissions. The Respondent filed their Written Submissions on 24. 5.2021while the Claimant filed on 29. 6.2021.

1. The Respondent submitted that he was never served with the claim herein and therefore was condemned unheard. That the Respondent did not file a defence therefore the judgment entered was reached without affording them an opportunity to be heard against the provisions of Act 50 Constitution of Kenya.

2. That he was served with a Notice to Show Cause on WhatSapp page of his mobile phone.

3. That they therefore pray for Stay of Execution of the judgment, and any other Orders since they were entered without his participation.

4. That he was never served with Summons and the Affidavit of Service is full of falsehoods.

5. That the Respondent’s Defence has raised triable issues that require the court to grant him an opportunity to be heard.

6. The Claimant submitted that the Respondent deliberately ignored, refined and or abandoned to honour his loan obligation. That on 15. 7.2014, he wrote a letter in which he committed himself to repay the loans in monthly installments. That therefore the draft defence amounts to mere denials and does not raise any triable issues.

7. That the Respondent was served with the Summons to enter Appearance on 8. 10. 2019 as per the Affidavit of Service filed by Thomas Otieno after he was identified by James Obaga a former colleague of the Respondent and an employee of the Claimant. That the Respondent signed the principle copy therefore acknowledging service. That the said signature is not disputed. That the ex-parte judgment is therefore a regular judgment and the same should not be set aside.

8. We have carefully considered the pleadings, documents and the written submissions on record and consider the issues raised hereunder.

WHETHER THE DEFAULT JUDGMENT WAS REGULAR OR IRREGULAR

In a regular default judgment, the defendant will have been duly served with summons to enter appearance, but for one reason or another, he failed to enter appearance or file a defence resulting to default judgment.

Such a defendant is entitled under Order 10 Rule 11 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:

i. The reason for the failure of the defendant to enter appearance or file the Defence.

ii. The length of time that has elapsed since the default judgment was entered.

iii. Whether the intended defence raises triable issues

iv. The respective prejudice each party is likely to suffer.

v. Whether its in the interest of justice to set aside the default judgment.

This Principles are well established in Mbogo & Another -vs- Shah [1968] EA 63 & Patel -vs – EA Cargo Handling Services Limited [1979] EA 75

For an irregular default judgment, on the other hand, it will have been entered against a defendant who has not been served or properly served with summons. In such a case the default judgment is set aside ex debito justiciae (as a matter of right) and not as a matter of discretion 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. This was held in Onyango Oloo vs Attorney General [1986-1989] EA 456.

Issues for determination

i. Whether the Respondents were served

ii. Whether there was inordinate delay to file this Application

iii. Whether the draft defence raises triable issues

iv. Whether it is in the interest of justice to set aside the default judgment (prejudice to the respective parties.)

v. Costs.

i. Whether the Respondents were served

9. The Respondent submitted that they were not served with the summons to enter Appearance and that the Affidavit of Service of the Process Server was full of deliberate falsehoods. That the Respondent did not meet the process server at all and therefore there was no service hence the Interlocutory Judgment cannot be based on the Affidavit of Service filed.

10. The Claimant submitted that indeed the Respondent was served on 8. 10. 2019as per the Affidavit of Service sworn by Thomas Otieno Akach on identification by James Obaga. That the Respondent signed on the face of the Summons, and the signature has not been disputed.

11. In Shadrack Arap Baiywo – vs- Bodi Bach[1987] eKLR, it was held that:

“ there is a presumption of service 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. But if the fact of service is denied, it is desirable that the Process Server should be put into the witness box and an opportunity of cross-examination given to those who deny the service.”

In this case, the service is denied by the Respondent but there is no prayer to cross-examine the Process Server. Indeed the Process Server as per Affidavit of Service has deponed that Paragraph 4:

“ I proceeded to the offices of Kisii County Government where the Respondent employed. On arrival, I met the Respondent, I therefore introduced myself and the purpose of my visit.

Paragraph 5:

“ ......the Respondent thereafter received his copy of the summons together with all the attached documents and signed my copy......”

Indeed, the Summons is signed on 8. 10. 2019 and signed by the Recipient, the Respondent herein.

12. The signature, the place of work are not disputed by the Respondent. The Respondent submitted that the Affidavit of Service was full of falsehoods, however, there was no request to cross-examine the Process Server. In the Shadrack Arap Bwaiyo case (Supra) there is a presumption of service as stated in the Affidavit of Service and the burden lay upon the Respondent to show that it was full of falsehoods. The Affidavit of Service is hereby deemed sufficient evidence of the service, since the Respondent has not offset the onus of proving the allegation of its falsehoods, and neither is there a prayer for cross examination of the Process Server.

13. The Request for judgment was filed on 8. 11. 2019 and the Tribunal having satisfied itself that service of Summons was effected as per the Affidavit of Service, entered Summary Judgment for the liquated claim of Kshs.1,011,235/= plus costs and interest on 13. 11. 2019.

14. The Interlocutory/ex-parte/Summary Judgment is therefore a regular default judgment and the Respondent is not entitled to setting aside ex debito justiciae, but the Tribunal has the discretion to set aside as held in Kenya Orient Insurance Limited - vs- Cargo Stars Limited, John Bosco & Another [2017] eKLR.

ii. Whether there was inordinate delay in filing this Application

15. The Claimant filed the Request for Judgment on 8. 11. 2019 after having effected service on 8. 10. 2019. Summary Judgment was entered on 13. 11. 2019.

The Respondent filed a Memorandum of Appearance dated 22. 11. 2021 on 28. 1.2021 and a Notice of Appointment of Advocates on 1. 3.2021 together with a Notice of Motion Application under Certificate of Urgency.

We note that this entry of Appearance was filed by the Respondent himself about 14 months after entry of judgment. Thereafter, the Advocate filed a Notice of Appointment on 1. 3.2021. We note that the Application having been filed over 14 months after entry of judgment, there was inordinate delay.

Whether the draft Defence raises triable issues

The Respondent submitted that the claim proceeded without their participation hence he has been condemned unheard. They cited:

1. Court of Appeal No. 937/02

Reliance Bank Limited –vs- Norlake Investment Limited and

2. Court of Appeal No. 342/05

Malcom Bell -vs- Daniel T. Moi & Another

Where stay of execution was granted because execution was imminent and that the draft Defence had triable issues.

17. The Claimant submitted that the draft Defence did not raise any triable issues and constitutes mere denials. That the Respondent on 15. 7.2014 wrote to the Claimant the commitment letter to repay his loans “annexture “107” , “ Kshs.700,000/= from his provident fund Benefits and Kshs.25,000/= per month from end month July 2014 latest 5th of the following month”

That therefore making a denial in the draft defence is not merited since he had already admitted and given a payment proposal which was not kept. That he should have provided an account of the payments made to offset the loan since he made the commitment in 2014.

18. We have carefully considered the submissions of both parties. We have noted the loan Applications annexed by the Claimant, the Statements of Accounts and the Respondent’s letter dated 1. 7.2014 to the Replying Affidavit.

In the Supplementary Affidavit filed on 24. 5.2021, there was no mention or response to counter the contents of the Replying Affidavit, particularly paragraph 19.

19. The draft Defence paragraph 5 alludes to the payment of the loan is full but there is no attachment to show the same.

The written submissions have not given any pursuation whatsoever on the “triable issues” raised in the Defence.

In Mbogo –vs- Shah (Supra) it was held that the Tribunal has unfettered discretion to set aside a regular default judgment. It is also trite law that:

“ a person cannot be permitted to take advantage of his own default or omission to defeat a claim against him as held in Cheall –vs- Association of Professional Executive Clerical & computer staff (1983) 1 All.

iv. Whether it is in the interest of justice to set aside the default judgment (prejudice to the respective parties)

20. As discussed in this Ruling, the Respondent was duly served with the Summons and neglected, and/or refused to enter Appearance or file a Defence. By the time of filing this Application,14 months had lapsed hence there was inordinate delay.

The Respondent obtained a facility and in July 2014 made a commitment to repay. However, to date, there is no evidence of any one payment in honour of the said commitment or to show that the loan was paid in full, hence the Defence raises no triable issue.

21. The Respondent after service of Summons, slept on their rights and only woke up 14 months later to apply for setting aside of a regular judgment and to stay execution. There is no reasonable explanation why, even after the commitment to repay in 2014, the Respondent did not offset the loan and after service of Summons, opted not to file an Appearance or Defence. The draft Defence does not raise triable issues and therefore, no useful purpose would be served by setting aside an otherwise regular judgment.

22. We therefore find that the Notice of Motion Application dated 1. 3.2021 has no merits and we accordingly dismiss it with costs assessed at Kshs.10,000/=.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF AUGUST, 2021

Hon. B. Kimemia Chairperson Signed 19. 8.2021

Hon. J. Mwatsama Deputy Chairperson Signed 19. 8.2021

Mr. G. Kamiti Member Signed 19. 8.2021

Tribunal Clerk R. Leweri

Mr. Getange advocate for Claimant/Respondent present

No appearance for Applicant.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Notice to show cause dated 2. 12. 2020 filed on 19. 8.2021 for 7. 12. 2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021