Ndumberi Dairy Farmers’ Co-operative Society Limited v Waruinge [2023] KECPT 844 (KLR)

Ndumberi Dairy Farmers’ Co-operative Society Limited v Waruinge (Tribunal Case 46 of 2020) [2023] KECPT 844 (KLR) (26 October 2023) (Ruling)

Neutral citation: [2023] KECPT 844 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 46 of 2020

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

October 26, 2023

Between

Ndumberi Dairy Farmers’ Co-operative Society Limited

Claimant

and

Edin Njau Waruinge

Respondent

Ruling

1. The matter before us for determination is the Respondent/Applicant’s Notice of Motion Application dated 19th December, 2022, filed on 20th December, 2022. In the Application, the Respondent prays for orders: -a.Spent.b.Spent.c.Spent.d.That the interlocutory judgement dated 08. 07. 2023 entered against the Applicant together with all consequential orders be set aside and leave be granted to Respondent to defend the suit.e.That the costs of this Application be borne by the RespondentsThe Application is based on the grounds therein and supported by the Affidavit of the Respondent sworn on 19th December, 2022 and filed on 20th December, 2022.

2. In support of the Application, the Respondent/Applicant avers that he was not served with court process, that the Respondent/Applicant does not owe the Claimant the monies Claimed, that the Respondent/Applicant has been condemned unheard. The Respondent/Applicant further states that the Claimant/Respondent will not suffer any prejudice if the prayers sought are granted and that it is in the interest of justice that the Application is allowed.

3. The Claimant/Respondent opposses the Application vide the Replying Affidavit sworn by one Joseph Maina Kamau, sworn on 1st February, 2023 and filed on 3rd February, 2023. In the Replying Affidavit, the Respondent, who is the manager of the Claimant/Respondent states that the Respondent/Applicant was duly served with summons to enter appearance and Statement of Claim on 19th October,2021, as per the annexed Affidavit of service marked ‘JMK1’ and he failed to enter appearance. The Claimant/Respondent further avers that the Respondent/Applicant’s Application is frivolous and lacks merit and is intended to obstruct the course of justice. That the Respondent/Applicant delayed in filing the Application herein and yet the decree was served on 5th September, 2022. That the judgement entered on 8th July, 2022 was procedural as the Respondent/Applicant was duly served and given a proper opportunity to put his case upon merit but he failed to do so, and the Application is a waste of judicial time and abuse of the court process.The parties filed written submissions in respect to the Application.

Determination. 4. We have considered all the documents filed by the parties and find that there is one issue for determination;

Issues for Determination. Whether or not the Respondent/Applicant was served with Summons to enter Appearance and Statement of Claim?Having considered the submissions of the parties and the case law cited therein, and having considered the Affidavits of service, we are not satisfied that the Respondent/Applicant was properly served with Summons to enter Appearance in terms of order 5 rule 12 of the Civil Procedure Rules. The Affidavit of service filed by the Claimant/Respondent has not demonstrated that the Process Server made a reasonable number of attempts to serve the Respondent in person and could not find him before resorting to serving him through the adult member of the family. 5. We therefore agree with the holding of the Court of Appeal in CMC Holdings Ltd v Nzioki[2004] KLR 173 and exercise our own discretion in the interest of justice and hereby allow the Respondent/Applicant’s Application dated 19th December, 2022 with costs.The Application dated 19. 12. 2022 is allowed in terms number 4 and order for:1. The Respondent to file and serve Statements of Defence, Witness Statements and List of Documents 14 days from today.2. Claimant to file and serve Supplementary Documents if need be 14 days upon service by Respondent.3. Mention for Pre-trial directions on 17. 1.2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE - MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 26. 10. 2023HON. PAUL AOL - MEMBER SIGNED 26. 10. 2023Tribunal Clerk - JonahMberere advocate for Respondent/ApplicantHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26. 10. 2023