Titus v Urithi Housing Cooperative Society [2024] KECPT 968 (KLR)

Titus v Urithi Housing Cooperative Society (Tribunal Case E451 (422) of 2022) [2024] KECPT 968 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 968 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E451 (422) of 2022

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

May 30, 2024

Between

Peter Musyoka Titus

Claimant

and

Urithi Housing Cooperative Society

Respondent

Ruling

1. For determination before this Tribunal is a Notice of Motion Application dated 2nd June 2023 filed by the Respondent seeking for the following prayers:a.Spentb.That this Honourable Tribunal be pleased to grant a stay of execution of the default judgment entered on 15th November, 2022 pending the hearing and determination of this Application.c.That the default judgment entered against the Respondent herein together with all the consequential orders be set aside.d.That the Honorable tribunal be pleased to grant leave to the Respondent to defend the suit and file their Statement of Defence out of time.e.Costs of this Application be provided for

2. The Respondent provided the basis of the Notice of Motion Application to include an argument that they were not served with summons, that the claimants did not produce evidence/ copy of Affidavit of Service, that the Tribunal entered into an irregular judgment on 15th November 2022 against them without being heard.

3. The Chairman of the Respondent reiterated the same grounds in the Notice of Motion Application in his Supporting Affidavit and state that their Draft Defence has triable issues.

4. In response, the Claimants filed an Application dated 3rd July 2023 and urged the Tribunal to strike out the Application because it does not disclose reasonable grounds.

5. To be fair to each party, the Tribunal set to have the parties to interrogate the prayers raised in the Notice of Motion Application. On 16. 2.2024 the parties agreed to canvass the Application by way of written submissions. Each of the parties was given 14 days to file and serve the written submission.

6. Upon reading the evidence on record, we find that the only issue that the Tribunal is called upon to determine is whether the judgment entered by the Tribunal was irregular warranting it to be set aside as prayed?

Analysis 7. Service of summons to enter appearance in a suit is an imperative log in a judicial trial. Under Order 5 Rule 1 (1) of the Civil Procedure Rules 2010, summons play the role of inviting the other party to state their case. Specifically the Rule states as follows:(1)“When a suit has been filed a summons shall issue to the Defendant ordering him to appear within the time specified therein.”

8. Once served, a party should enter appearance and filed a Defence. Failure to comply, the Court/Tribunal upon a request by the Claimant/Plaintiff, the Tribunal would enter into a default judgment.

9. In the instant case, the Respondents state under paragraph 4 of the Supporting Affidavit Application dated 2. 6.2022 of Mr. Samuel N. Maina that:“I learnt of this suit through the Respondent’s advocate on record when they were served on 14. 4.2023 with an Application herein dated 22. 3.2023. “He went further to state under paragraph 5 of the same Supporting Affidavit.“that I am informed by the Respondent’s advocate on record which information I verify believe to be credible that on 15th November, 2022, this Honourable tribunal irregularly entered a default judgment against the Respondent herein and a decree issued on 16th December, 2022 for Kshs.1,784,410/=”.

10. Perusing through the Claimant’s copies of pleadings, we find that there is an Affidavit of Service Application dated 18. 8.2022 which was filed on 13. 10. 2022 which was sworn by Odhiambo Lynn M. Buoga – a Court Process Server.In it, the Process Server swore that he effected the service of the summons and the accompanying Bundle of Documents through the email of the Respondents which he recorded as:infor@urithihousing.co.ke at 9. 55a.m on 1st August 2022.

11. Further, under paragraph 5 of the Affidavit of Service, the Process Server stated:“that I have done by due diligence and found out that the chairman of Urithi Housing Cooperative is called Samuel Maina and served him the summons and stamped copies of the claim on 1. 8.2022 at 10. 03a.m and he responded that he will revert back (Emphasis ours)”.Given that the court through practice directions issued during Covid- 19 period, service of court pleadings were allowed, the Tribunal affirms that the service of the summons were served on the respondents and that is why a default judgment was eventually entered when the Respondent failed to enter appearance and file Defence.

12. In our view, the Respondent attempt to challenge the default using Order 10 Rule 4 of the Civil Procedure Rules 2010 clearly shows a party who wishes to shift his own frolics and failures to the Claimant.

13. The default judgment entered by the Tribunal is regular because service of summons were effected upon the Respondent. We have not come across any inadequacy of that service which would persuade the Tribunal to set it aside.In addition, the Draft Defence Application dated 2nd June, 2023 was filed 7 months after the entry of the judgment. The same does not raise any arguable Defence that may warrant the Tribunal to tamper with the judgment.

14. In conclusion, it is our finding that the Respondent’s Notice of Motion Application dated 2nd June 2023 has no merit and is hereby dismissed with costs. OrdersWe make orders as follows:i.Application dated 2. 6.2023 is dismissed with costs to the Claimant/Respondent.It is so ordered.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe - Member Signed 30. 5.2024Hon. Fridah Lotuiya - Member Signed 30. 5.2024Hon. Philip Gichuki - Member Signed 30. 5.2024Hon. Michael Chesikaw - Member Signed 30. 5.2024Hon. Paul Aol - Member Signed 30. 5.2024Tribunal Clerk JonahEchom advocate holding brief for Mr. Mwangi for the RespondentPeter Musyoka – No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024