Sundor v Jitegemee Sacco Society Limited [2023] KECPT 403 (KLR)

Sundor v Jitegemee Sacco Society Limited (Tribunal Case E008 of 2022) [2023] KECPT 403 (KLR) (Civ) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 403 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E008 of 2022

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

April 27, 2023

Between

Lidya Soini Sundor

Claimant

and

Jitegemee Sacco Society Limited

Respondent

Ruling

1. Matter for determination is the respondent’s notice of motion dated July 22, 2022, filed on August 3, 2022.

2. By its Notice of Motion, the Respondent seeks the following orders:a.Spentb.That pending the hearing and determination of this application there be a stay of execution of the decree issued herein on 8th July, 2022. c.That the court be pleased to set aside the Interlocutory Judgment entered herein and all the consequential proceedings giving rise to the judgment delivered on 8th July,2022. d.That upon granting prayer 3 above, the defendant be granted leave to file his Statement of Defence to the suit out of time.e.That the costs of this application be in the cause.

3. The Motion is supported by an Affidavit sworn by the Chief Executive Officer of the Respondent, Peter Somba, who depones that the judgment was obtained as a result of proceedings which he was not a party through no fault of his own as they had instructed the firm of Mutisya Mwanzia & Ondeng Advocates, that the Respondent was condemned unheard and that the Interlocutory Judgment should be set aside.

4. The Claimant responded to the Notice of Motion by an Affidavit sworn on September 5, 2022. She depones that a Memorandum of Claim together with Summons to Enter Appearance were served upon the Respondent on May, 17 2022 and filed an Affidavit of Service with the Tribunal on June, 7, 2022. The Respondent did not enter appearance and did not file a response to the claim.

5. The Respondent does not deny being served by the Claimant. However, he claims that he forwarded the Summons to Enter Appearance to his advocate when he received it.

6. In his Supporting Affidavit, Mark Mwanza, the advocate for the Respondent admitted receiving Summons to Enter Appearance and other relevant documentation from the Respondent. However, he filed a Memorandum of Appearance erroneously with the Mombasa registry and he was advised to forward the same to the Tribunal through email.

7. Indeed there is a Memorandum of Appearance on record dated 23rd May 2022 and filed on the same day in High Court Registry, Mombasa.

8. There is also an email sent to the Tribunal at cooptribunal.customercare@gmail.com dated June, 6 2022 by Mark Mwanza.

9. In the Statement of Defence dated June 15, 2022, the Respondents do not deny that the Claimant was a member of the Sacco and that she performed all her obligations to the satisfaction of the Respondent.

10. However, the Respondents raise the issue that the Claimant’s employer (then), Mombasa County, is yet to release her dues for the period the Claimant was under Employment, and that there is a matter in the Mombasa Employment Court seeking immediate payment from Mombasa County.

11. In the case of Lucy Bosire v Kehancha Div. Land dispute Tribunal & 2 Others [2013] eKLR Odunga J held as follows:-“It must be recognized that blunders will continue to be made from time to time and it does not follow that because a mistake has been made a party should suffer the penalty of not having his case determined on its merits.”

12. The Tribunal finds that the Respondent’s advocate made a mistake by filing the Memorandum of Appearance in Mombasa High Court Registry instead of the Cooperative Tribunal’s Registry and that he has made a case for grant of orders of stay of execution and setting aside of the judgment. We are persuaded a genuine error occurred.

13. The respondent’s notice of motion dated 22nd July 2022 is hereby allowed and the Interlocutory Judgment entered on July 8, 2022 is set aside.We find merit in the application dated 22. 7.2022 and allow that:a.That the court is pleased to set aside the Interlocutory Judgment entered herein and all the consequential proceedings giving rise to the judgment delivered on July 8, 2022. b.That upon granting prayer 3 above, the defendant is granted leave to file his Statement of Defence to the suit out of time.c.Each party to bear their own costs of this Application.d.Respondents to file statement of Defence, Witness Statement and List of Documents within 21 days from today.e.Mention for Pre-trial directions on 12. 7.2023. Notice to issue.

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/JonahMs Gatimu advocate holding brief for Mr. Mwanzia for the Respondent.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023