[2024] KECPT 919 (KLR)

Waumini Sacco Society Limited v Ngati (Tribunal Case 625/E425 of 2021) [2024] KECPT 919 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 919 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 625/E425 of 2021

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

May 30, 2024

Between

Waumini Sacco Society Limited

Claimant

and

Mary Ngena Ngati

Respondent

Ruling

1. This ruling dispenses with the Respondent’s Notice of Motion Application dated 28th August 2023 supported by an affidavit sworn by the respondent, MARY NGENA NGATI, and brought under Order 22 Rule 22, 10 rule 11 Order 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A(1)(2)(3), 3A of the Civil Procedure Act and all other enabling provisions of the Law. The application seeks the following orders:1. Spent2. That this Honourable court be pleased issue an interim order to lift the warrant of attachment against the property of the Respondent/Applicant herein pending the hearing and determination of this application.3. That this Honourable court be pleased issue an interim order to stay execution of the judgment and decree in this suit.4. That the interlocutory judgment entered herein against the Respondent and all the consequential orders be set aside, and the Respondent be granted leave to enter appearance and file a memorandum of response to this suit and that the same be heard afresh inter-parties.5. That this Honourable court do make such further orders that may be appropriate in the interests of justice and the costs of this Application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The judgment in default of appearance was entered against the Applicant herein, and execution proceedings have been commenced by the Claimant/Respondent. The Applicant contends that she was neither served with any documents in this case, nor any notice of entry of judgment. She contends that she had an arguable defense, and that she stands to suffer be highly prejudiced and suffer substantially if the Claimant is allowed to proceed with the execution proceedings. In the supporting affidavit, the Applicants avers that she was never served with any documents and that the affidavit of service on record is defective and contains false averments for the reason that the email that the same was allegedly sent through does not belong to her, and that the request for judgment was one against one Peter Dominic Rogoi and not hers.

3. The Application was canvassed via written submissions and both parties filed their submissions. Claimant/Respondent filed written submissions dated 13. 2.2024 on 15. 5.2024 and Respondent/Applicant filed written submissions dated 23rd November 2023 on 15. 5.2024.

Issues For Determination 4. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the interlocutory judgment in default of appearance delivered on 17th June 2022.

Analysis 5. The Applicant in this case claims that she was not served with the service to enter appearance, 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.

6. It is now upon the person alleging that service was defective to show that indeed such service was defective. In the instant case, the applicant claims that the email address that was used to effect service is not hers, and therefore she did not receive the summons.

7. In their submissions, the Claimant/Respondent submit that the email address was retrieved from the particulars that the Respondent provided in her Loan Application Form. This Tribunal has perused the loan application form filed by the Claimants but have failed to see the email address. However, this Tribunal notes that the application form submitted was for a top up loan facility, and therefore, the alleged email address could be in other loan application forms by the Applicant.

8. In the case of William Langat Vs Joseph K. Sindai [2021] eKLR the Court observed as follows:-“Under order 5 Rule 16 where there is allegation that a summon had not been properly served, the court may have the process server summonsed to be cross-examined on the service. A reading of this Rule suggest the court may at its own motion make an order for the process server to be examined. One would however expect that the applicant who disputes service to be on the frontline in seeking to have the process server summonsed to be examined. The court it appears did not make any order for the examination of the process servicer and no request was made by the applicant to have the process server summoned for examination.”

9. However, in this case we note that the service by email by the process server is not disputed. What is disputed is the email that the process server served the summons to. Therefore, this court does not see the need of calling the process server to be cross-examined.

10. Order 10, rule 11 of the Civil Procedure Rules provides that ex-parte interlocutory judgment in default of appearance or Defence may be set aside, it states as follows: -“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 above provision clearly provides that a court has discretion to set aside a judgement. In the case of Patel vs EA Cargo Handling Services Ltd (1974) EA 75, the Court held that:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules, the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”

12. Further, in the case of Kimani -v- MC Conmell (1966) EA 545 it was observed that where a regular judgment had been entered the court would not usually set aside the judgment unless it was satisfied that there was a triable issue.

13. This Tribunal notes that the issue before it is whether the email that the process server sent the summons belongs to the applicant. Neither the applicant nor the Respondent has provided evidence in support or against the email belonging to the applicant. This, therefore, culminates in the word of the Applicant as against that of the Respondent.

14. Looking at the Draft Statement of Defence that has been filed together with the application, this Tribunal notes that the Respondent admits that she was a member of the Claimant and that she was advanced a loan facility by the applicant. However, she raises the issue that she has been faithfully paying the loan but the claimant has been negligent in keeping proper records. We find this to be a triable issue that needs to be subjected to further interrogation.

15. The upshot of the foregoing is that we allow the Notice of Motion application dated 28th August 2023 and make the following ordersa.The Interlocutory Judgement entered on 17th June 2022 is hereby set aside.b.The Respondent to pay throwaway costs of Kshs. 20,000/- to the Claimants within 30 days of this ruling in default interlocutory judgment stands.c.The Respondent to file his Statement of Defence, witness statement and List of Documents within 14 days of this Ruling, and thereafter comply with Order 11 of Civil Procedure Rules.d.Each party to bear their own costs.e.Mention for Pre-trial directions on 7. 10. 2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE - MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI - MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 5.2024HON. PAUL AOL - MEMBER SIGNED 30. 5.2024Tribunal Clerk JonahNgure advocate for the Claimant/RespondentNyaata & Nyaata advocate for the Respondent/Applicant- no appearance.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 5.2024