Kiamumbi Farmers Co-Operative Society Ltd v John Kahigi Muigai & another [2017] KEHC 3992 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 656 OF 2009

KIAMUMBI FARMERS CO-OPERATIVE SOCIETY LTD........APPELLANT

VERSUS

JOHN KAHIGI MUIGAI ……....….……....................… 1ST RESPONDENT

SUSAN WAIRIMU NGUGI …….....….....................…. 2ND RESPONDENT

(Being an appeal from the ruling/order of the Chairman Co-operative Societies Tribunal (Mr. J.L. Ole Kipury) delivered  on 22nd October, 2009 in Tribunal Case No. 213 of 2007) at Nairobi in Tribunal Case No. 213 of 2007)

JUDGMENT

The respondent herein had filed a claim against the appellant before the Cooperative Society Tribunal, which claim proceeded to hearing ex parte and the appellant herein came to know about it when served with a decree and notice to show cause why execution should not issue.  It is as a result of that service that the appellant became aware that a suit had been filed by the respondents against it.

For reasons that shall be clear shortly hereunder, I shall not address the pleadings or the merits of the claim.  The appellant on knowing  of the ex parte orders moved to the Cooperative Tribunal to set aside the ex parte ruling or order but the respondents opposed the said application.  Upon considering the written submissions, on 22nd October, 2009 the appellant’s application was dismissed.

It is upon that dismissal that this appeal followed.  Although several grounds have been raised, the ground that stands out is ground No. 2 which reads as follows,

“The Hon Tribunal erred in fact and in law in failing to make a finding with costs on whether or not service of Summons was effected upon the Appellant.”

The fact of whether summons to enter appearance and file a defence was served upon the appellant herein, was not seriously interrogated and settled in the entire proceedings and ruling of the Tribunal.  Service of summons and pleadings upon a party is intended to give notice to such a party of the case to be faced.

Where therefore, it appears that no such service was effected the court should not have any hesitation whatsoever to set aside any proceedings that took place or judgment that may have been entered against such a party.    To hold otherwise is to condemn a party without a hearing, which would be an affront to the basic rule of natural justice.

I have gone through the record before me.  I am not persuaded that the appellant was ever served with summons to enter appearance, and therefore its failure to enter appearance and file a defence cannot be blamed on it.  That ground alone in my view, disposes of this appeal.  The appellant is entitled to a hearing which was not accorded to it along all the steps leading to this appeal.  Regrettably, this is an old matter but  that alone cannot compromise the interests of justice.

Accordingly, this appeal is allowed and the entire proceedings and judgment and orders of the Cooperative Tribunal are set aside.

The respondents claim shall be heard afresh with notice to the appellant before the Cooperative Tribunal presided over by an entirely new list of members.  Each party shall bear their own costs of this appeal.

Dated and delivered at Nairobi this 19th Day of July, 2017

A. MBOGHOLI MSAGHA

JUDGE