Mutea v Kiringa [2025] KECPT 371 (KLR)

Mutea v Kiringa (Tribunal Case 58 of 2020) [2025] KECPT 371 (KLR) (10 July 2025) (Ruling)

Neutral citation: [2025] KECPT 371 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 58 of 2020

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

July 10, 2025

Between

Henry Isaiah Kathia Mutea

Claimant

and

Kabaka Christine Kiringa

Respondent

(Coram: Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. The Notice of Motion Application dated 2nd January, 2025 is brought under Order 8 Rule 3 (2) (3), Order 18 Rule 10 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 100 of the Civil Procedure Act (Cap 21) and all other enabling legislation seeking among other orders:a.Spentb.That the judgment in default entered on 25th January, 2023 be set aside.c.That the defendant be granted leave to file Defence and defend the Plaintiff’s claim out of timed.That the Honourable Court be pleased to make any other and further orders that it deems just.

2. The Application was supported by the annexed Affidavit of Christine Kabaka on the grounds:i.That the Honorable Court was moved to enter a Default Judgment in the suit and judgment was delivered against the Defendant on the 25th January, 2023 awarding the prayers in the Plaint together with costs thereof to Plaintiff.ii.That she only became aware of the matter when the Plaintiff was executing the judgement. Therefore, the Default entered was irregular and ought to be set aside ex debitio justiciae.iii.That Service of the Pleadings and summons to enter appearance was never effected upon the Defendant as per Order 5 of the Civil Procedure Act and Rules and that she had never instructed any advocate to accept service on her behalf and or to appear for her in this matter.iv.That she only became aware of the conclusion of the suit when she was called by the police and served with the warrant of arrest.v.That she is apprehensive that she shall be grossly prejudiced should the execution be allowed to proceed.vi.That it is just and equitable for this Honourable Court to grant the orders sought in the Application.

3. This Tribunal gave directions for the Application to be served. The Claimant filed his Replying Affidavit dated 11th March, 2025 stating among others:a.That the summary of the grounds in support of the Application are inaccurate and with some convenient omissions of pertinent facts. As such,, the conclusions drawn from those grounds and the Applicant's legal evaluation are devoid of any factual or legal basis.b.That the Application is misconceived, an afterthought, incompetent, frivolous, based on falsehood and aims at misleading the Court.c.That the Applicant was served at her last known address in 2020 and despite being served with the Summons and the Pleadings, the Applicant blatantly failed to enter appearance and respond to the claim. Consequently, a request for judgment was filed and the Honourable Tribunal acted on the same.d.That the Honourable Tribunal issued directions on 9th September, 2022 for the Claimant to serve summons afresh in the absence of Defence by the Respondent.e.That the fresh summons were duly served upon the Applicant and despite further service of the Summons to enter appearance, the Applicant failed to file their Defence and a Request for Judgment dated the 24th day of September, 2022 was duly filed before the Tribunal for the sum of Kshs. 178,828. 14 together with interest at 24% per annum from the date of filing till payment in full together with costs.f.That at all times, the Applicant was duly served with the Hearing Notices, Mention Notices, the Decree, ten (10) days' Notice of entry of judgement, the Notice to show cause dated 21st March, 2023 and all pleadings pursuant to the directions of the Tribunal and the Application is a mere afterthought meant to deny the Respondent the fruits of the judgement.g.That further, the Applicant has not elaborated any sufficient reasons to warrant the prayers sought in the Application as against the Claimant.

4. We have considered the Application, the Replying Affidavit and the Written Submissions filed, and the only question remaining for determination is as to whether the threshold for setting aside of the judgement delivered on 25th January, 2023 has been met?Has the threshold for setting aside of the judgement delivered on 25th January, 2023 been met?

5. The beginning point is to state that we are not persuaded as a Tribunal that the judgement we delivered on 25th January, 2023 was an irregular judgement - we have considered all the notices and how they were served and the requirement of serving a party at their last known location, and it is our considered decision that service was effected as required.Be as it may, the celebrated court decision of Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193 still mandates this Tribunal to look at the unique circumstances of each case. In that case, the court stated that:“A judge has to judge the matter in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties before it would be just and reasonable to set aside or vary the judgement, if necessary, upon terms to be imposed. Hence the justice of the matter, the good sense of the matter, were certainly matters for the judge. It is an unconditional unfettered discretion, although it is to be used with reason, and so a regular judgement would not usually be set aside unless the court is satisfied that there is a Defence on the merits, namely a prima facie Defence which should go to trial or adjudication. The principle obviously is that, unless and until the court has pronounced a judgement upon the merits or by consent it is to have the power to revoke the expression of its coercive power, when that has been obtained only by a failure to follow any of the rules of procedure.”

6. In essence therefore, this Tribunal has to consider a number of things before making the decision as to set aside or not disturb its Judgement of 25th January, 2023. Those things include:a.Whether the Application has been served without inordinate delayb.Whether there are triable issues raised, and lastc.Whether either party will suffer prejudice that cannot be compensated by costs.In as much as we sympathize with the Applicant about her tribulations of losing her job and her parents, she has not raised any triable issue relating to the loan or the accrued loan amount - to the contrary, she has admitted to taking the loan and even explained the circumstances under which she defaulted in paying the loan.We have also considered the age of the suit, the suit was filed in 2020, and it is our considered decision that to exercise discretion and allow the matter to continue being in court for more than the 5 years it has taken, based on the reasons given will not serve the ends of justice to the ClaimantFinally, we have considered the judgement of 25th January, 2023 and realized that it was given at an interest rate of 24% till payment in full. The guiding decision in Bouchard International (Services) Ltd v M’mwereria [1987] KLR 193 allows this Tribunal vary its judgement, if necessary, upon terms to be imposed. In the interest of justice, we review our orders as follows

Final Orders:1. The Notice of Motion Application dated 2nd January, 2025 found to be without merit dismissed with costs.2. The judgment entered on 25th January, 2023 and all consequential orders are reviewed as follows:i.Judgement entered for the sum of Kshs. 178,828. 14 together with interest at Tribunal rates (12% per annum) from the date of filing till payment in full together with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025. Hon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025Hon. Beatrice Sawe Member Signed 10. 7.2025Hon. Fridah Lotuiya Member Signed 10. 7.2025Hon. Philip Gichuki Member Signed 10. 7.2025Hon. Michael Chesikaw Member Signed 10. 7.2025Hon. P. Aol Member Signed 10. 7.2025Tribunal Clerk MutaiMs. Mwaniki advocate for the ClaimantKabaka Christine – No appearanceMs. Mwaniki advocate – Parties were to try an out of court settlement. We attempted negotiation but the same failed as such we are ready to take a ruling date.Respondent who is Applicant has not filed their written submissions as they had indicated.Hon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025File closedHon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025