Marcelino v Laichena [2024] KECPT 70 (KLR)

Marcelino v Laichena (Tribunal Case 162/E185 of 2023) [2024] KECPT 70 (KLR) (29 January 2024) (Ruling)

Neutral citation: [2024] KECPT 70 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 162/E185 of 2023

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

January 29, 2024

Between

John Kimathi Marcelino

Claimant

and

Francis Mugambi Laichena

Respondent

Ruling

Facts of the case. 1. Around November 2021, the Claimant agreed to be a guarantor for the Respondent for a loan to the tune of Kshs. 2,000,000/= out of their long standing friendship.The Respondent defaulted on servicing the loan even after several reminders were given, and on 10th January, 2023, the LSK Sacco exercising their power of recovery proceeded to offset a sum of Kshs. 2,000,000/= from the Claimant’s savings.

2. The Respondent failed to reimburse the Claimant the said sum, necessitating the filing of this case to recover.The Respondent was served with the Statement of Claim and on 12th April, 2023, he filed his Statement of Defence. Upon the receipt of the Respondent’s Statement of Defence, the Claimant filed a Notice of Motion under sections 1A,1B& 3A of the Civil Procedure Act, Order 2 Rule 15 and orders 51 Rule 1 of the Civil Procedure Rules and Articles 159 (2) (b) of the Constitution seeking the striking out of the Statement of Defence as it was: Based on mere denials and scandalous

Lacking in substance and an abuse of the process of the court.

3. According to the Claimant, the Respondent in his Statement of Defence has admitted to owing him Kshs. 2,000,000/= and has not disputed that he is entitled to a refund of his savings.This Tribunal on 7th June, 2023 ordered the Application to be served with further orders given on 7th November, 2023.

Striking Of defence and entering of summary Judgment 4. We have considered the evidence before court and to assist us strike or not strike the Defence and enter Summary Judgment, we are under obligation as a Tribunal to analyze it and see whether it raises triable issues.

5. Order 2 Rule 15 of the Civil Procedure Rules allows this Tribunal to at any stage strike out any pleadings if:i.They do not disclose any reasonable cause of action or Defence in Law.ii.They are scandalous, frivolous or vexatious,iii.They may prejudice, embarrass or delay the fair trial of the action,iv.They are an abuse of the process of the court and may order the suit to be stayed.

6. It is important to note that striking of pleadings is a drastic remedy that courts only consider if the pleadings are a complete sham. In the case of Kenya Commercial Bank v Suntra Investment Bank Limited [2015] eKLR, it was the opinion of the court that a balance must be struck between the policy consideration that a Plaintiff should not be kept away from his judgment by an unscrupulous Defendant who files a Defence which is a sham simply for the purpose of delaying the finalization of the case, and the understanding that striking out pleadings is a drastic remedy that should only be used in clearest of cases.

7. In this particular case, the Defence filed does not raise any triable issue as the Respondent is not disputing owing the Claimant or raising a question to be determined by this Tribunal. The amount in question is also liquidated and not in dispute or has not been challenged.

8. As such, we find the Notice of Motion filed on 16th May, 2023 has merit and as such strike out the Statement of Defence filed on 12th April, 2023.

Final Orders: i.The Notice of Motion filed on 16th May, 2023 has succeeded and the Statement of Defence filed on 12th April, 2023 has been struck out.

ii.Judgment for the sum of Kshs. 2,000,000/= is hereby entered in favour of the Claimant against the Respondent plus costs and interest at Tribunal rates from the date of filing the claim.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2024. HON. BEATRICE KIMEMIA -CHAIRPERSON SIGNED 29. 1.2024HON. BEATRICE SAWE - MEMBER SIGNED 29. 1.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 1.2024HON. PHILIP GICHUKI - MEMBER SIGNED 29. 1.2024HON. MICHAEL CHESIKAW -MEMBER SIGNED 29. 1.2024HON. PAUL AOL -MEMBER SIGNED 29. 1.2024Tribunal Clerk JemimahNjuguna for Claimant/ApplicantMiss Mutinda holding brief for Ayieka for RespondentRuling for Application dated 4. 5.2023 filed on 16. 5.2023 - delivered.Miss Mutinda- I pray for 30 days stay of execution.Njuguna – No objection.Order: 30 days stay of execution granted.HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 29. 1.2024