Shoppers Sacco Society Ltd v Kisilu [2023] KECPT 457 (KLR)

Shoppers Sacco Society Ltd v Kisilu (Tribunal Case E251 (433) of 2021) [2023] KECPT 457 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 457 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E251 (433) of 2021

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

April 27, 2023

Between

Shoppers Sacco Society Ltd

Claimant

and

Charles Kisilu

Respondent

Ruling

1. The Respondent/ Applicant vide a Notice of Motion Application dated July 22, 2022 sought orders to set aside ex-parte judgment, Stay of Execution of the Decree and Leave to file a Response/Defence. The orders sought are:a.Spentb.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.c.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 hearing and determination of this application.d.That this Honourable Court be pleased to set aside the ex-parte judgment entered on January 31, 2022. e.That this Honourable Court be pleased to grant me a leave to file my Response to claim and the annexed Draft Response be deemed as duly filed upon payment of the requisite filing fees.f.That the costs of this Application be provided for.

2. That the Respondent/Applicant have not denied that he was granted a loan of Kshs 720,000 by the Claimant/Respondent (paragraph 8 of the Supporting Affidavit).

3. That on the mention date of November 28, 2022 this Tribunal granted the parties 14 days to negotiate and agree on the payment proposal which answers the claim of being condemned unheard.

4. That the Applicant/Respondent was served with a Statement of Claim on October 28, 2021, summons to enter appearance on October 27, 2021 and an ex-parte judgment on January 31, 2022. During all this time the Respondent/Claimant’s conscience was not choked.

5. That upto the time the Applicant/Respondent was served with the orders, he took his cool time to take action, leave alone contact his previous advocate to know the progress of the matter.

6. That by virtue of acknowledgment of service of the ex-parte judgment, the Tribunal considers this is a regular judgment. This is buttressed in the case of Mwala V Kenya Bureau of Standards EA LR (2001)/EA 148 where the court stated thus:'To all that I should add my own views that a distinction is to be drawn between a regular and irregular ex-parte judgment. Where the Judgment sought to be set aside is a regular one, then all the above consideration as to the exercise of discretion should be borne in mind in deciding the matter. Where on the other hand, the Judgment sought to be set aside is an irregular one, for instance, one obtained either where there is no proper service, or any service at all of the summons to enter appearance or when there is a memorandum of appearance or Defence on record but the same was in inadvertently overlooked the same ought to be set aside not as a matter of discretion, but ex debit justiciae for a court should never countenance an irregular Judgment on its record.'

7. On the same note the Tribunal has read and considered the grounds adduced by the Respondent/Applicant to set aside the ex-parte judgment and the subsequent orders which does not raise triable issues.The attached Draft Defence does not raise any triable issues to warrant the Summary Judgment to be vacated.

8. Given the facts so stated the Tribunal dismisses the Application dated July 22, 2022 as is found to be without merit. Costs to the Claimant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOI MEMBER SIGNED 27. 4.2023TRIBUNAL CLERK JEMIMAH/JONAH