Kungu v Marumi Farmers Cooperative Society Limited [2023] KECPT 1088 (KLR)

Kungu v Marumi Farmers Cooperative Society Limited (Tribunal Case 841/E927 of 2022) [2023] KECPT 1088 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KECPT 1088 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 841/E927 of 2022

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

December 14, 2023

Between

Tiras Muti Kungu

Claimant

and

Marumi Farmers Cooperative Society Limited

Respondent

Ruling

1. The Claimant filed a Statement of Claim on 25th October, 2022 based on the fact that in the year 2019-2020 he delivered coffee produce to the Respondent Society for processing and marketing, which fetched a sum of Kshs. 260,559/= which he has never been paid.

2. Upon filing the claim and serving the Respondent, with the Respondent opting or refusing to enter appearance or file a Defence, the Claimant made an application for judgment in default of filing a Defence and on 16th February, 2023 this Tribunal entered judgment in default of filing a Defence in favour of the claimant with a decree being ordered for the sum of Kshs. 252,634/= costs were awarded at the sum of Kshs. 39,087/=.

3. The Claimant later made an Application for execution of the Decree, which this Tribunal approved and upon moving for attachments, the Respondent filed a Notice of Motion under Rule 10 and Rule 11 of the Civil Procedure Rules seeking for the judgment of this Tribunal of 16th February, 2023 to be set aside and all other Consequential Orders relating to that judgment, and also that he be granted leave to file his Defence out of time.

4. This Tribunal issued orders which allowed the parties to serve each other with the necessary pleadings and directed the parties to file written submissions in the end to enable the court rule on the Application.The Claimant has not complied with this Tribunal orders and/or opted not to file anything despite being served through his advocate.

Issues for determinationi.Whether this tribunal should set aside its ruling of 16th February 2023, and the resultant Decree and allow the annexed Defence that has been filed out of time to be admitted.

Issue one- Whether this Tribunal should set aside its ruling of 16th February 2023, and the resultant decree and allow the annexed Defence that has been filed out of time to be admitted.The decision of whether or not to set aside an ex-parte judgment is discretionary, with the power of discretion given to courts to exercise with the aim of avoiding injustice or hardship as a result of accident, inadurtence or excusable mistake or error.

5. In this particular case, it is not in doubt that the judgment of this Tribunal of 16th February 2023, was a regular judgment as there is evidence to confirm service. However, this Tribunal has also considered circumstances and facts both before and subsequent to the judgment it issued and even the annexed Statement of Defence which in our opinion raises triable issues, especially if considered with other documents filed by the Respondent as evidence.They raise issues which need canvassing before this Tribunal can make a decision. As such, it would not be in the interest of natural justice to condemn the Respondent unheard.

Final orders i.The Notice of Motion Application dated 14th April, 2023 is allowed.

ii.The judgment entered on 16th February 2023, and other Consequential Orders and Orders and Decrees are vacated.

iii.Respondent to file and serve Statement of Defence, Witness Statement and Documents 21 days from today.

iv.Mention for Pre-trial direction on 15. 3.2024. Notice to issue.

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 JonahC.M. Njoroge Advocate for the RespondentKirubi Mwangi Ben for Claimant- No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 14. 12. 2023