Cheruiyot & 5 others v Boresha Sacco Society Limited [2025] KECPT 94 (KLR)

Cheruiyot & 5 others v Boresha Sacco Society Limited (Tribunal Case 584/E417 of 2021) [2025] KECPT 94 (KLR) (Commercial and Tax) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 94 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Commercial and Tax

Tribunal Case 584/E417 of 2021

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

January 30, 2025

Between

Richard Kipkurgat Cheruiyot

1st Claimant

Kabon Cheruiyot

2nd Claimant

and

Kongato Leah Cheruiyot

Defendant

and

Flossy Jemutai Kurgat

1st Claimant

John Kipkorir Kurgat

2nd Claimant

Jemeli Kurgat

3rd Claimant

and

Boresha Sacco Society Limited

Respondent

Ruling

1. The Application for consideration is the Respondent’s Notice of Motion Application dated 8th June 2024 supported by an Affidavit sworn by one, Daniel Mengich, the Respondent’s head of credit, and brought under Order 51 Rule 15, Order 40 Rule 1 & 2 of the Civil Procedure Rules, 2010, section 3, 3A & 63 (e) of the Civil Procedure Act, Cap 21 of the Laws of Kenya and all other enabling provisions of the Law. The application seeks the following orders: 1. That this application be certified as urgent for hearing on a priority basis.

2. That there be stay of execution and/or further execution of the decree in this matter pending hearing and determination of this application interparties.

3. That the ex parte judgment entered herein together with all consequential orders be and are hereby set aside and this suit be heard de novo.

4. Costs of this application be in the cause.

2. The Application is premised on the grounds on its face which are inter alia that: The Respondent was served with pleadings in the matter and they immediately furnished the firm of Maritim Omondi & Company Advocates with instructions to take up the matter, and he was shocked when it was served with Warrants of Attachment.

3. The Claimant/Respondent filed a response to the Application through the 6th Claimant and dated 10th July 2024. In their response, the Claimants oppose the application on the basis that the Applicants admit that they were served, that they forwarded the file to their advocates, and still did not follow up on the matter until they were served with warrants.

4. The Respondents/Applicants filed their submissions.

Issues For Determination 5. The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to set aside the ex-parte judgment in default of appearance delivered on 27th April 2023.

Analysis 6. It is not in dispute that the Respondent was duly served with the summons to enter appearance. However, they did not file an appearance or statement of Defence. In the premises, the entry of the judgment in default by this tribunal was regular, lawful and procedural. The question that follows, therefore, is whether failing to enter appearance and file a Statement of Defence is excusable. The Respondent/Applicant states that his advocate on record failed to enter appearance or proceed with the matter. No reason for such failure is given, and the Advocate who failed to file a defense for his client is no longer on record.

7. In Shah –vs- Mbogo & Another [1967]6. A U7, the Court of Appeal for Eastern Africa held that:-“Applying the principle that the court’s discretion to set aside an ex-parte judgment is intended to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but not to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the cause of justice, the motion should be refused”

8. Further, in the case of Martha Wangari Karua –VS- IEBC Nyeri Civil Appeal No.1 of 2017 the Court of Appeal held as follows:-“The Rules of Natural Justice require that the court must not necessarily drive any litigant from the seat of justice without a hearing, however weak his or her case may be….”

9. Therefore, the question that we ask ourselves, is whether to exercise our discretion and allow for the application. This court agrees with the Applicant that blunders will continue to be made and are inevitable, and that court should be hesitant to close the door to the corridors of justice but we are also alive to the responsibility a litigant has towards a matter in which he is a party. In the case of Ketteman & Others V. Hansel Properties Ltd, [1988] 1 All ER 38, Lord Griffith stated that:“Legal business should be conducted efficiently. We can no longer afford to show the same indulgence towards the negligent conduct of litigation as was perhaps possible in a more leisured age. There will be cases in which justice will be better served by allowing the consequences of the negligence of lawyers to fall on their own heads rather than allowing an amendment at a very late stage in the proceedings. …………. To our mind, this is the most proximate way to balance out the competing interests of both parties to the suit.”

10. This is an old matter that was filed on 20th December 2021 and the Applicants were served on 24th January 2022. The judgment was entered on 27th April 2023. We find that there was unexplainable delay by the Applicants to follow up on their matter with the advocate. The Applicants have informed this court they only knew the status of this matter when they were served with a decree. Meaning that if the Claimants did not move this court to enter judgement, they would still be waiting on the Applicant to enter appearance and act on the matter. No reason has been given as to why they did not follow up on the matter with their advocate. This court is also alive to the interests of the Claimants. Indolence on the part of the applicants should not be visited upon the Claimants to deny them the enjoyment of the fruits of their judgement. This court must balance the interests of both parties.The upshot of the foregoing is that;

11. We find that the Notice of Motion 8th June 2024 lacks merit and is hereby dismissed with costs to the Claimant/Respondent.File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED 30. 1.2025HON. BEATRICE SAWE - MEMBER - SIGNED 30. 1.2025HON. FRIDAH LOTUIYA - MEMBER - SIGNED 30. 1.2025HON. PHILIP GICHUKI - MEMBER - SIGNED 30. 1.2025HON. MICHAEL CHESIKAW - MEMBER - SIGNED 30. 1.2025HON. PAUL AOL - MEMBER - SIGNED 30. 1.2025Tribunal Clerk MutaiKipkirui advocate for Respondent - PresentCheptarus advocate for Claimant/Respondent - PresentHon. J. Mwatsama Deputy Chairperson Signed 30. 1.2025