[2023] KECPT 1059 (KLR)

Wanjiru v Unaitas Sacco Society Limited (Tribunal Case 411/E227 of 2021) [2023] KECPT 1059 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1059 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 411/E227 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & PO Aol, Members

November 30, 2023

Between

Zipporah Njeri Wanjiru

Claimant

and

Unaitas Sacco Society Limited

Respondent

Ruling

Facts Of The Case. 1. Around October 2018, the Respondent started making deductions from the Claimant’s current account on the understanding that they were recovering a sum of Kshs. 80,000/= and interest advanced as a loan to her late husband.

2. The Claimant reached out to the Respondent to have an explanation on why the deductions were being made from her account, yet she was neither privy to the contract between the Respondent and her late husband nor did they share a joint account.

3. The Respondent did not stop making the deductions necessitating the filing of this case by the Claimant to restrain the Respondent from making further deductions and to recover what had been deducted without lawful justification.

4. Despite being served, the Respondent did not enter appearance and on 14th March, 2022 the Claimant made a request for judgment in default of filing a Memorandum of Appearance and Statement of Defence which this Tribunal considered and gave judgment on 10th June, 2022.

5. Subsequently, a decree was extracted for the total award of Kshs. 87,200/= with costs awarded of Kshs. 35,560/=.

6. The Claimant later approached this Tribunal for Warrants of Attachment, and upon the same being issued and served on the Respondent, they filed a Notice of Motion Application under Order 10 Rule II, Order 12 Rule 7 Order 22 Rule 6, 18 and 22 and Order 51 Rule 1 of theCivil Procedure Rules seeking among others that:a.Pending the hearing and determination of the Application, a stay of execution of the decree issued be granted.b.The default judgment entered against the Respondent and all other Consequential Orders be set aside.c.Leave be granted for the Respondent to file their Defence, List of Documents and List of Witnesses.

7. The Notice of Motion Application was based on the grounds that the failure to participate in the proceedings was not intentional and they have not deliberately sought the setting aside and stay to delay the course of justice as the inadvertence which is highly regretted should be excused as their Secretary by mistake mixed up documents in a pile and could not trace the Summons to enter Appearance and as such, the Summons did not reach their legal department to enable them enter Appearance and defend the claim.

8. The Application was also based on the grounds that the execution proceedings was based on an irregular process and interests of justice would be best served if the Application was allowed.

9. Having gone through the proceedings, the only question remaining for determination, is whether this Tribunal should set aside its initial judgment and the Consequential Orders from that judgment, and grant leave for the Respondent to file his Defence, List of Documents and List of Witnesses.The decision to set aside or grant leave for a party to file their Defence, documents or add witnesses is a discretionary power given to courts to exercise to avoid injustice or hardship resulting either from some accidents, 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.InBouchard International (Services) Limited v M’mwereria [1987] KLR 193 the court said:“The basis of approach in Kenya to the exercise of the discretion to be employed or rejected under either Rule 8 or Rule 10 (the latter dealing with judgment by default ) is that is service of Summons to enter appearance has not been effected, the lack of an initiating process will cause the steps taken to set aside ex debito justitiae. If service of notice of hearing or Summons to enter Appearance has been served, then the court will have before it a regular judgement which may yet be set aside or varied on just terms. To exercise this discretion is a statutory duty and the exercise must be judicial”

10. In this particular case, the Respondent has not denied being served with Summons to enter Appearance and as such what is before this Tribunal as annexed in the Notice of Motion Application is a regular judgment. We are not persuaded by the reasons given as to why the Respondent did not enter Appearance - that their Secretary by mistake mixed up documents in a pile and could not trace the Summons to enter Appearance and as such, the Summons did not reach the Respondent’s legal department for appropriate action.

Final OrdersApplication dated 11. 7.2023 is found to be without merit and dismissed with costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 30. 11. 2023Hon. J. Mwatsama Deputy Chairperson Signed 30. 11. 2023Hon. Beatrice Sawe Member Signed 30. 11. 2023Hon. Fridah Lotuiya Member Signed 30. 11. 2023Hon. Philip Gichuki Member Signed 30. 11. 2023Hon. Paul Aol Member Signed 30. 11. 2023Tribunal Clerk JonahMunga advocate holding brief for Waithaka advocate for the Claimant.Mwangi advocate for Respondent/Applicant.Hon. J. Mwatsama Deputy Chairperson Signed 30. 11. 2023