Ngara Gracious Savings Co-Op.Soc. Ltd v Miriam Nyokabi Nginyo [2020] KECPT 120 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

CASE NO. 988 OF 2018

NGARA GRACIOUS SAVINGS CO-OP.SOC. LTD. ………..CLAIMANT

VERSUS

MIRIAM NYOKABI NGINYO……………………………..RESPONDENT

R U L I N G

What is before us for consideration and determination is the Claimant’s Application dated 4/10/2019 .  It seeks, in the main, the following orders;-

a. That the Defence filed on 25/1/19 be struck out;

b.  That default Judgment be entered in favour of the Claimants; and

c.   Costs.

The Application is supported by the grounds on its face and the Affidavit of Mary Nyambura Mwangi sworn on 4/10/2019.

The Respondent has opposed the Application by filing a Replying Affidavit sworn by herself on 22/1/2020 .

Claimant’s Contention

The graveman of the Claimant in this Application is that the Respondent has flouted the law by filing a Defence without entering appearance .

Vide its written submissions dated 25/2/2020, the Claimant cited the decision of the Court in the case of Beatrice Wanjiru Kamuri –vs- John Kibira Muiruri to buttress this argument.  It has also cited to case of Kitani Sammy –vs-IEBC & 2 others, Petition No. 2/17to buttress the argument that failure to enter appearance is an issue of substance and not a procedural technicality.  It also reiterated the foregoing in its supplementary submissions filed on 10/3/2020.

Respondent’s contention.

Vide her Replying Affidavit, the Respondent contend that when the case begun, she was acting in person before she appointed her current advocates on record who filed a Notice of appointment on 8/5/2019.  That subsequently, the said advocates filed on Application compelling the Claimant to produce documents.  That to date, the said documents have never been produced.

Vide her Written Submissions  dated 5/3/2020, the Respondent contend that when she was served with summons to enter appearance on 27/12/2018, she entered appearance on 18/1/2019 and filed a statement of defence on 24/1/2019.  That when she served the documents upon the Claimant, it refused and/or declined to receive the same.

Issues for determination.

We have framed the following issues for determination;-

a. Whether the Claimant has laid a proper basis to warrant the striking out of Defence and entry of default judgment; and

b.  Who should meet the cost of the Application.

Entry of Appearance

The basic issue for determination in this Application is whether the Respondent entered appearance upon been served with summons and if she did not do so, whether the Defence should be struck out and default judgment entered in favour of the Claimant.

The answer to the above issue is predicated upon the pleadings and their sequence of filing.  This claim was filed on 30/11/2018.  Summons to enter appearance were subsequently issued on 27/12/2018. The Respondent filed a Defence on 28/1/2019.  We have perused the record and cannot see and/or trace a memorandum of appearance.  Clearly therefore, it is apparent that the Respondent filed a statement of Defence without entering appearance.  The question then arises as to whether it is fatal to the Respondent’s case for the Respondent to file a Defence without entering Appearance.  Put it the other way round;- Whether filing a defence without entry of appearance is a matter of form or substance that goes to the root of the matter.  In our honest observation, we find that the same is a matter of form that does not go to the substance of the suit Rule 4 of the Co-operative Tribunal (practice and procedure) Rules, donates to us the power and discretion to disregard such procedural technicalities.  This is augmented by Article 159  2 (d) of the Constitution.

Conclusion

Accordingly, we do not find merit in the Claimant’s Application and hereby dismiss it with costs in the cause.  Order to apply to CTC No. 988/18.

Ruling Read, dated and delivered, via email in accordance with the directions given by the Honourable, the Chief Justice on 15/3/2020, this 30th day of, April, 2020.

Prepared by Hon. B. Kimemia – Chairman, Hon. F. Terer – Deputy– Chairman, and P. Gichuki Member, with the consent of the parties.  The final orders to be delivered by email in accordance to the prevailing measures during the COVID-19.

B.KIMEMIA

CHAIRMAN                        Signed

F. TERER

DEPUTY CHAIR                   Signed

P. Gichuki

Member                                      Signed