Kenya Bankers Sacco Society Limited v Mucheke [2025] KECPT 98 (KLR)

Kenya Bankers Sacco Society Limited v Mucheke (Tribunal Case 949/E1016 of 2022) [2025] KECPT 98 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 98 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 949/E1016 of 2022

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

January 30, 2025

Between

Kenya Bankers Sacco Society Limited

Claimant

and

Moses Murungi Mucheke

Respondent

Ruling

Notice of Motion Application 1. The Notice of Motion Application dated 26th February 2024 is brought under Article 159 (2) of the Constitution, Section 1A,1B and 3A of the Civil Procedure Act, Order 12 Rule 7 and 51 of the Civil Procedure Rules seeking among others:a.Spentb.That the directions made/issued by the Honourable Tribunal against the Respondent on 16th November 2023 be stayed pending the final determination of the present application, and/or till further orders of the honorable tribunalc.That the Respondent be granted unconditional leave to defend the matter and to attend all antecedent proceedings theretod.That the Orders made on 16th November 2023 be set aside and the Respondent be granted liberty to defend the cause.

2. The said Application was based on the Affidavit of Moses Murungi Mucheke on the grounds:i.That the cause was filed on 7th December, 2022 and since then the Respondent only came to know about it when he checked his e-mail on 23rd of February 2024ii.That upon inquiry, the Respondent was advised that the matter was listed for hearing on 16th November 2023 and the judgment was scheduled for 29th February 2024iii.That failure to enter appearance and defence was not due to any willful neglect on the part of the Respondent, save that the Respondent was not personally served with the pleadingsiv.That in the interest of justice, the Respondent is praying to be granted the opportunity to be heard in his Defencev.That failure to attend court on 16th November 2023 was not due to any willful neglect on the part of the Respondent, save that the Respondent was never served personally and was not aware of the Honorable Tribunal proceedingsvi.That it is the cardinal duty of the Honourable Tribunal to dispense justice with all fairness by hearing both parties in a dispute in order to arrive at a just decision given the circumstancesvii.That in the circumstances, the Respondent prays that the orders made on 16th November 2023 be stayed pending the final determination of the applicationviii.That it is a principle of natural justice that a party should not be condemned and unheard.

3. The Respondent also attached his Statement of Defence dated 26th February 2024 which stated among others:a.An admission of borrowing the sum stated, but challenged the cause of action undertaken by the claimant to recover as premature and grossly contravenes the rites and regulations pertaining to the application, approval and disbursement of loans, and the mode of recovery of outstanding loansb.Admitted to receiving the notice of demand, but challenge the allegation of failure or refusal to pay

4. This Tribunal on 4th March, 2024 gave directions for the Application to be served and in response to the Application, the Claimant through their Head of Recoveries Edna Mwangi filed a Replying Affidavit dated 14th May 2024 stating among others:1. That the Claimant advanced a loan of KShs. 1,196,900/= to the Respondent which he defaulted to pay as agreed2. That upon filing of the suit by the claimant, the Respondent was served through his last known e-mail address3. That the Claimant has been previously communicating with the Respondent using the mentioned e-mail address which the Respondent does not dispute in his application4. That the Respondent failed to enter appearance and file a Defence within 15 days as stipulated in the Summons to Enter Appearance5. That on 12th January 2023, the Claimant requested that judgment be entered against the Respondent who had failed to enter appearance despite being duly served, and on the 2nd of February 2023 the Honorable Tribunal being satisfied that proper service was done entered interlocutory judgment in favor of the Claimant against the Respondent for the sum of Kshs. 876,646. 09/=6. That no orders were issued on 16th November 2023 by the Tribunal as alluded by the Respondent in his Notice of Motion and therefore the Application is defective to the extent that it seeks to set aside imaginary orders7. That in light of the delivery of judgment, the Claimant has already commenced the execution process to enable it recover the judgment sum8. That the Respondent cannot claim to have not received the pleadings and summons to enter appearance through the same e-mail address which he claims to have received the judgment notice9. That service of pleadings through e-mail is recognized as a mode of service under Order 5 Rule 22B and therefore the Respondent cannot therefore pray that the judgment be set aside on the ground that he was not personally served10. That the Respondent had sufficient time to file the current application which he has filed almost one year and a half since the filing of the Statement of Claim11. That the Respondent has not given any clear explanation on why he failed to appear on 29th February 2024, and also the annexed Statement of Defence is frivolous and vexatious and does not raise any triable issues to be considered by the Honorable Tribunal

5. We have considered the application and the replying affidavit filed and the only question remaining for determination is as to whether service through e-mail is sufficient serviceIs Service through e-mail Sufficient Service?Order 5 Rule 22B of the Civil Procedure Rules provides for service through electronic mail service and are clear that:i.Summons by electronic mail services shall be sent to the defendants last confirmed and used email address.ii.Service shall be deemed to have been effected when the sender receives a delivery receipt.iii.Summons shall be deemed to have been served on the day which it is sent, if it is sent within the official business hours on a business day in the jurisdiction sent or and if it is sent within the official business hours on a business day it shall be considered to have been served on the business day subsequent.iv.An officer of the court who is authorized to effect service shall file an affidavit of service attaching the Electronic Mail Service delivery receipt confirming service.From the provisions of Order 5 Rule 22B of the Civil Procedure Rules, a party is entitled to serve summons upon another party before court at their last confirmed and used E-mail address, and it is important to note that electronic service is not an alternative or substituted mode of service, and as such there is no need by a party to explain why they never served personally.From the facts of this case, we note that the Respondent does not deny that the email address belonged to him but only states that he did not access his email for some time and therefore missed out on the service to enter appearance and file the Statement of Defence. Given that there is no other obligation imposed on a party before court under Order 5 Rule 22B, we find that the service on the Respondent was regular and well effected – the Respondent shouldn't be allowed to conveniently hold the position of seeing some emails from the Claimant and not seeing others through the same email address. Final Orders:1. The Notice of Motion Application dated 26th February 2024 is dismissed with costs.2. File ordered as closed.

JUDGMENT 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 MutaiChepchumba advocate for Claimant- PresentMoses Murungi Mucheke – No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 30. 1.2025