Kamau v Epusi & another [2023] KECPT 1089 (KLR)

Kamau v Epusi & another (Tribunal Case 80 of 2020) [2023] KECPT 1089 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KECPT 1089 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 80 of 2020

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

December 14, 2023

Between

Fridah Wangari Kamau

Claimant

and

Joshua Epusi

1st Respondent

Maisha Bora Cooperative Society Limited

2nd Respondent

Ruling

1. This case began with the filing of a Statement of Claim on 5th February, 2020 where the Claimant alleged that they guaranteed the 1st Respondent a Development Loan of Kshs. 2,000,000/= which was rejected, and sometimes in November 2015, the 1st Respondent applied for another loan of Kshs. 1,300,000/= and forged her signature as a guarantor.

2. That in 2018 when the 1st Respondent started defaulting in loan repayment, she was surprised to lean that the 2nd Respondent had illegally and fraudulently deducted a sum of Kshs. 780,843/= from her savings, necessitating the filing of this claim.

3. Both the 1st and the 2nd Respondent did not enter appearance despite being served and the matter proceeded for hearing, with this Tribunal issuing a ruling on 21st February, 2023. On 12th June, 2023, a decree was extracted for the sum of Kshs. 1,085,371. 77/= with costs awarded at a sum of Kshs. 134,655/=.Upon attachment, the 2nd Respondent filed a Notice of Motion under Order 12 Rule 7, Order 42, Rule 6, Order 51 Rule 1 of the Civil Procedure Rules seeking among others:a.A Stay of Execution of the ruling of the Tribunal delivered on 21st February, 2023. b.A Stay of Execution of the judgment entered on 28th July, 2023 and the decree issued.c.The setting aside of the judgments obtained by the Claimant in this suit and all other Consequential Orders and Decree.d.To be granted unconditional leave to file their Defence and defend the suit.

4. This Tribunal issued Interim Orders giving a Stay of Execution till 9th August, 2023 with the 2nd Respondent ordered to serve all parties.

5. The Claimant opposed the Application and annexed evidence showing that the 2nd Respondent was served with Summons to enter appearance and pleadings, stamped copies showing receipts, and has also attached correspondences from a law firm instructed by the 2nd Respondent to indicate that they were aware of this suit but opted not to enter appearance.

6. The 2nd Respondent or their part acknowledge receiving the Summons and the Pleadings but blame their instructed advocates for not entering appearance or serving them with the Notices, and also blame the frequent change of management in their Cooperative Sacco as also contributing to them not being able to defend or do a follow up about the case.

Issue for determination i. Whether this Tribunal should set aside its ruling of 21st February, 2023 and the resultant decree, and allow the annexed Defence that has been filed out of time as duly filed and served. 7. It is important to note that from evidence presented, it is not in doubt that the judgment of this Tribunal of 21st February, 2023 was a regular judgment as Summons to enter appearance were served on 27th February, 2020. That being the case, this Tribunal has to consider the Application for setting aside before it in light of facts and circumstances both prior and subsequent to the judgment it issued as not to cause any injustice to any party in this suit.

8. As we are called upon as a tribunal to exercise our discretion in setting aside our initial judgment, we have to do that judiciously and we must be satisfied that whatever position we reach, does not make any of the parties to suffer injustice or hardship.

9. In this particular case, we are convinced that the failure to enter appearance or file a Defence in time was a result of excusable mistake, inadvertence, accident or error. The reasons given which among others include which among others include blame games of – our advocate on record did not notify us or given the frequent change of management in our society, were unable to follow up on the matter - are flimsy and will cause injustice to the Claimant if we were to overturn her judgment and all other Consequential Orders and Decrees.

Final orders. 10. i.The Notice of Motion Application dated 26. 7.2023 is found to be without merit and is dismissed with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 14. 12. 2023HON. J. MWATSAMA DEPUTY - CHAIRPERSON SIGNED 14. 12. 2023HON. BEATRICE SAWE MEMBER - SIGNED 14. 12. 2023HON. FRIDAH LOTUIYA MEMBER - SIGNED 14. 12. 2023HON. PHILIP GICHUKI MEMBER - SIGNED 14. 12. 2023HON. MICHAEL CHESIKAW MEMBER - SIGNED 14. 12. 2023HON. PAUL AOL MEMBER SIGNED - 14. 12. 2023Tribunal Clerk JonahMs Kyeva Advocate Holding Brief For Ms. Thiongo For The 2Nd Respondent/applicant.Mungai Kamau advocate for the Claimant.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 14. 12. 2023