Orient Sacco Society Limited v Gikonyo [2022] KECPT 154 (KLR)

Orient Sacco Society Limited v Gikonyo (Tribunal Case 153 of 2021) [2022] KECPT 154 (KLR) (Civ) (17 March 2022) (Ruling)

Neutral citation: [2022] KECPT 154 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 153 of 2021

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

March 17, 2022

Between

Orient Sacco Society Limited

Claimant

and

Mary Njeri Gikonyo

Respondent

Ruling

1. The Application for determination is not dated and filed on 23. 8.2021. The Application is brought under Section 58, 73, 74 Cooperative Societies Act, 2009, Order 2 Rule 15 (1) (a) (b), Order 36 Rules 1a and 8 and Order 51 of the Civil Procedure Rules, 2010, Section 1, 1A, 3, 3B of the Civil Procedure Act and all other enabling provisions of the law.)The Application seeks for orders:a.That Statement of Defence dated 8th April 2021 be struck out for scandalous, frivolous and/or vexatious.b.That this Honourable Tribunal be pleased to enter summary judgment in favour of the Applicant for the sum of Kshs. 4,205,400. 00 as at 28th January 2021, with interest thereon from the date of the surcharge orders.c.That this Honourable tribunal be pleased to order pursuant to section 75 of Cooperative Societies Act that Kshs. 4,205,400. 00 is a civil debt that shall be recoverable summarily.d.That this Honourable Tribunal be pleased to order the immediate payment of Kshs. 4,205,400. 00 to the Applicant,e.That the Respondent be condemned to pay the costs of this Application as well as the costs of the entire suit.The same is premised on the grounds on the face of the Application and further supported by Bedan Kinyanjui Muraya sworn on 23. 8.2021 to which he avers.The Claimant/ Applicant filed a Statement of Claim on 28. 1.2021 seeking orders to adopt Surcharge Orders dated 3. 7.2021 by the Commissioner of Cooperatives.The Respondent was a member of the Board of Management and Chief Executive Officer during the probe period.That the recommendation of surcharge into Inquiry Report was adopted by the members of the Applicant on 11. 4.2019. Notice of intention to surcharge dated 9. 5.2019 was issued to the Respondent. Surcharge Order was issued on 3. 7.2019 for Kshs. 4,205,400/= by the Commissioner.The Respondent did not challenge the findings of the enquiry officers or file an Appeal.That he now wishes for the Respondent’s defence to be struck out.

2. The Respondent responded to the Application in opposition.The Respondent filed a Replying Affidavit sworn on 14. 10. 2021 filed on 25. 10. 2021 and she stated the inquiry report was contested in Nyeri ELRC No. 272 of 2017 and Applicant seeks to frustrate her fruits as the Respondent in ELRC suit No. 272 of 2017 was decided in her favour and this claim is after thought.The Respondent avers she has never been served with any notice to surcharge as averred by the Applicant. Nothing has been availed to her for her to put a proper defence of minutes of Special General Meeting.A judgment entered at this time would seriously prejudice the Respondent.

3. Parties were to file written submissions and Claimant/Applicant filed their written submissions dated 28. 10. 2021 on 5. 11. 2021 and Respondent filed written submissions dated 10. 12. 2021 on 14. 12. 2021. The Respondent would like for the suit to be heard on merit and Respondent to defend herself.The issues for determination are thus:Issue oneWhether the Applicant has met the threshold for summary judgment?Issue twoCostsIssue oneWhether the Applicant has met the threshold for summary judgment?Summary judgment is procedure law is provided under Order 36 Civil Procedure Rule 2010 and Rule 1“(1)In all suits where a Plaintiff seeks judgment for-a.A liquidated demand with or without interest ; orb.The recovery o land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,Where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest , or for recovery of the land and rent or mesne profits.(2)The Application shall be supported by an Affidavit either of the Plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.(3)Sufficient notice of the Application shall be given to the defendant which notice shall in no case be less than seven days.”Looking into the Defence of the Respondent the Question is whether the defence raises triable issues or in their response to the Application at hand.

4. It is very evident that summary judgment will only be entered in clear cut cases.Having considered the Application, Affidavits of the parties the above principles are to guide us.In the case of Job Kwach - vs- Nation Media Group Limited the court held:Before the grant of summary judgment the court must satisfy itself that there are no triable issues raised by the Defendant, either in his statement of defence or in the affidavit in opposition to the Application for summary judgment or in any Other manner. What then is a defence that raised no bonafide triable issue. A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black’s Law Dictionary defines the term “triable” as “subject to liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the court.”DT Dobie & Company (Kenya) Limited - vs- Muchina [1982]KLR Madan J. Stated:…….the power to strike out a pleading which ends in driving parties from the judgment seat should be used very sparingly and only in cases where the pleadings is shown to be clearly untearable…”Having looked keenly at the Defence by Respondent we find she does raise triable issues and the suit merits to go for full trial.We are not convinced why the Applicant to issue the orders prayed for as that will be condemning, the Respondent unheard.Based on the foregoing we find no merit in the Application and Application Notice of Motion filed on 23. 8.2021 is dismissed in its entirely.Costs to be in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF MARCH, 2022. Prepared by:HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 3.2022MR. P. GICHUKI MEMBER SIGNED 17. 3.2022MR. B. AKUSALA MEMBER SIGNED 17. 3.2022R. Leweri Tribunal ClerkMariga Advocate for the Claimant.Ms. Kionjera Advocate for the RespondentPre- trial directions on 19. 7.2022. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 3.2022