Gitobu v Kencom Sacco Society Limited [2024] KECPT 233 (KLR)

Gitobu v Kencom Sacco Society Limited (Tribunal Case 168 (E212) of 2023) [2024] KECPT 233 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 233 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 168 (E212) of 2023

BM Kimemia, Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

March 7, 2024

Between

Rachel Makandi Gitobu

Claimant

and

Kencom Sacco Society Limited

Respondent

Ruling

1. This is a Ruling emanating from a Notice of Motion Application dated 5th June 2023 filed by the Claimant seeking orders for:a.Striking out the Respondents statement of Defence dated 14. 4.2023. b.Entry of judgment in favour of the Applicant’s/Claimant against the Respondent for a sum of Kshs. 220,000/= plus interest.c.Costs to be provided for and be borne by the Respondent.

2. In support of the Notice of Motion, the Claimant filed a Supporting Affidavit dated 5th June 2023, a Verifying Affidavit Witness Statement, List of Witnesses and a List of Documents.

3. The Respondents filed a Statement of Defence dated 14. 4.2023 through the firm of Makhandia & Makhandia Advocates and denied every claim.

4. While considering the Claimant’s Application dated 5. 6.2023, the Tribunal made orders that:a.The Application be served upon the Respondent.b.That the Respondent and the Claimant should exchange written submissions within 14 days after each other’s service.c.That a Ruling date shall be given on the mention date of 10. 11. 2023.

5. An Affidavit of Service upon the Respondent dated 24. 8.2023 is filed in the Tribunal.

6. On 10. 11. 2023 this matter was mentioned where Kinyua advocate was present for the Claimant while Makhandia advocate for the Respondent was absent.The Claimant’s advocate argued out that they served the Respondents and there has been no response hence he prayed that the Claimant’s Application dated 5. 6.2023 be allowed.

7. At the time of writing this ruling the Respondent has not filed any other document or evidence except the Memorandum of Appearance dated 31. 3.2023 and the Statement of Defence dated 14. 4.2023.

8. With nothing to controvert the Claimant’s claim orally or in writing, we are left with one (1) issue for determination which is whether to allow the prayers sought in the Claimant’s Notice of Motion dated 5. 6.2023.

Analysis 9. First, let us look at what the law says Order 10 Rule 4 of the Civil Procedure Rule 2010 provide as:“Where the plaint makes a liquidated demand only and the Defendant fails to appear or before the day fixed in the summons or all the Defendants fail so to appear, the court shall enter judgment against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit at such rate as the court thinks reasonable to the date of the judgment and costs.”This provision empowers the Tribunal to enter Interlocutory Judgment in cases where a Plaint/claim in drawn with a claim and the Defendant has failed to substantially put up a Defence.

10. Currently the Defence that has been filed by the Respondent is mere denials that cannot help the Tribunal to make a determination.A cursory look at the Respondent’s records show that the Defendants have not attended the Tribunal during mentions have failed to comply with the Tribunals’ order dated 14. 8.2023 and failed to file written submissions which give an impression that the Respondents have no arguable Defence and their Defence raises no triable issues.

11. The upshot of the foregoing is that we find no reason not to allow the Claimant’s Application dated 5. 6.2023. Accordingly, we allow prayer 1,2 and 3. OrdersWe therefore order as follows:a.That the Respondents Statement of Defence dated 14. 4.2023 does not raise triable issues and a complete sham which we hereby strike it out.b.We hereby enter judgment in favour of the Claimant for the refund of Kshs. 220,000/= plus interest at the Tribunal’s rate be paid by the respondents.c.We hereby award costs for this suit in favour of the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 7. 3.2024HON. PAUL AOL MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahKinyua for Claimant/ApplicantNo appearance for RespondentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024