Rose Aluoch Oduka. & 3 others v Martin Mwangi Tarus [2021] KECPT 537 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.256  OF 2020

ROSE ALUOCH ODUKA. & 3 OTHERS.....CLAIMANTS

VERSUS

MARTIN MWANGI TARUS.........................RESPONDENT

RULING

1. The Application before court is one dated 25th  November  2020and filed  on even date. The Application seeks for orders:

I. Spent.

II. That upon hearing this application ex-parte , this Honourable court be and is hereby pleased to issue an order of stay of execution of the decree herein pending the hearing of this application inter-parties.

III. That upon hearing this application inter-parties, this Honourable Court be and is hereby pleased to issue an order of stay of execution of the decree herein pending the determination of this application.

IV. That this Honourable court be please to set aside the ex-parte judgment entered on 12th October , 2020.

V. That this Honourable Court be pleased to grant leave to the Respondent/Applicant to file its response to claim and annexed draft response be deemed as dully filed upon payment of the requisite filing fees.

VI. That the costs of this application be provided for.

2. The same is premised on the grounds on the face of the Application and Affidavit in support of Martin Mwangi Muchemi deponed on 25. 11. 2020.

3. The Application is opposed by the claimant vide a Replying Affidavit sworn by Jane Njeri Njumba on behalf of the claimants sworn on 10/12/2020.

The Tribunal gave directions of 1. 12. 2020 for the Application to be canvassed by way of written submissions. The Applicant file their submissions on 25. 2.2021 and the claimants filed their submissions dated 22. 3.2021 on(22. 3.2021)even date.

4. Applicant’s Case.

The Applicant seeks for order of stay of execution pending hearing and determination of Application and second issue if for Applicant /Respondent to be granted leave to file its response to the claim be.

5. Claimants Case

The Claimants opposed the application on granted that the Applicant /Respondent has admitted service of summons and failed to enter Appearance and further the Applicant acknowledges taking a loan from CUNHAM Sacco and the claimants guaranteeing him and then he was defaulting knowingly. Further that any payments made was done once the suit was filed and thus the Respondent must be pushed to make his repayment.

6. Having considered all the affidavits filed and written submissions by both parties the issues for determination can be summarized as follows:

a. Whether the Applicant/Respondent has established a proper basis to warrant setting aside default Judgment entered on 2. 10. 2020.

b. Whether the defence raised triable issues.

7. ISSUE ONE.

Setting Aside default Judgment. Order 10 Rule 11 CPR 2010 imposes the court to set aside an ex-parte judgment for default of appearance and defence.

This tribunal has jurisdiction to set aside default judgment. In this case of :

Pitton Waweru Maina -Vs-Thure Musire (1983)eKLR .

Kneller JA observed as Follows:

Patel -Vs- EA Cargo Handling Services (1974)EA 75,76. BC

“…….the court has a very wide discretion under the order and rule and there are limits and restrictions on the discretion of the Judge except that if the judgment is varied it must be done on turns that are just.

This discretion is intended to be exercised to avoid injunction on hardship resulting from accident, inadvertence, or excusable mistake or order , but it is not designed to assist a person who has deliberately sought , whether by evasive or otherwise , to obstruct or delay the course of justice : shah Vs. Mbogo (1969) EA 116,123 BC  Hevris J……”

8. The principles for the setting aside of exparte Judgment were considered in Mbogo Vs. Shah (1968)EA 93, 91

Referred to in Pithon Waweru as (Civil Suit 1 of 2018 )

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9. ISSUE TWO- TRIABLE ISSUES

The count must consider the defence put forward by the (Respondent/Applicant who seeks leave to defend. In continental Butchery Ltd Vs. Vishima (1978) KLR where the court (Madan JA) stated:

With a view for eliminate delays in the administration of justice which would keep litigants out of their just dues or enjoyment of their property the court is empowered in an appropriate suit to enter judgment for the claim of parties. Under summary procedure provided by order ….subject there being no bonafide viable issue which would entitle and leave to defend. If a Bonafide triable issue is remitted but no so in a case which the court thus justified in thinking that the defence remitted is a sham.

CONCLUSION

10. We have perused the draft response to the claim and the same can be said to be full of mere denials.

No issues are revised that would cause the cause to be taken up for trial.

The default Judgment of this court on 12. 10. 2020 was regular and we see no need to disturb the same .

The claimants are not in any way obligated to furnish a statement of account to the respondent herein on a loan he took and he can get the same from the facility.

The upshot of the above we do not find merit in the Applicant /Respondent application dated 25/11/2020 and dismiss the same with costs to the claimant.

RULING  SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021

Hon. B. Kimemia    Chairperson                ………………………..

Hon. J. Mwatsama   Deputy Chairperson  ………………………..

Mr. P. Gichuki         Member                       ……………………….

Tribunal Clerk          …………………………………………………..