Universal Traders Sacco Limited v Malika [2023] KECPT 813 (KLR)

Universal Traders Sacco Limited v Malika (Tribunal Case 259 of 2019) [2023] KECPT 813 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 813 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 259 of 2019

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

August 31, 2023

Between

Universal Traders Sacco Limited

Claimant

and

Cinty Mueni Maluka

Respondent

Ruling

Facts of the Case 1. The Respondent is a member of the Claimant Sacco with membership number 000732. Around 2010, the Claimant advanced the Respondent credit facilities through her request and as at 6th February, 2019 the outstanding loan amount plus interest stood at Kshs. 426, 186. 90/=.

2. Despite notice of intention to sue, the Respondent still failed or refused to pay necessitating the Claimant to file a suit in court for recovery on 15th May, 2019.

3. On 20th September, 2019, the Claimant made an Application for Interlocutory Judgment based on the fact that the Respondent had failed to enter appearance despite being served with a statement of claim, verifying affidavit, list of witnesses and list of documents.

4. On 26th September, 2019 this Tribunal entered judgment against the Respondent with a decree being issued on 30th September, 2020 for the sum of Kshs. 506,970. 85/=.

5. The decree holder in February, 2022 later moved to court for show cause orders seeking personal arrest and committal to civil jail of the Respondent.

6. In response to this, the Respondent appointed the firm of Nzilani Muteti who filed a notice of motion under Order 10 Rule 11 and Order 51 Rule 1 of the Civil Procedure Rules seeking to set aside the judgment entered on 26th September, 2019 claiming that it was entered wrongfully against her as she was never served with the summons to enter appearance and also that she has a good Defence with triable issues that have a very high possibility of success.

Issues for DeterminationiWhether the Tribunal should set aside the interlocutory judgment of 26th September, 2019. ii.Whether the Tribunal should grant an interim order of stay of execution of the notice to show cause dated 1st December, 2021. iii.Whether the Respondent should be allowed or granted leave to file Defence.Order 10rule 4 (1) of the Civil Procedure Rulesprovides that:(1)Where the plaint makes a liquidated demand only and the Defendant fails to appear on or before the day fixed in the summons or all the Defendants fail so to appear, the court shall, on request in Form No. 13 of Appendix A, enter judgment against the defendant or Defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of the suit, at such rate as the court thinks reasonable, to the date of the judgment, and costs.”

7. The Court of Appeal in James Kanyiita Nderitu & Another [2016] eKLR sort to draw the distinction between a default judgment that is regularly entered and one which is irregularly entered, and it was the opinion of the court that the factors to be considered on whether to set aside a judgment should include:i. Reason for failure to file the Memorandum of Appearance or Defence,ii. Length of time that has elapsed since the default judgment was entered,iii. Whether the Intended Defence raises triable issues,iv. The respective prejudice each party is likely to suffer, andv. Whether on the whole it is in the interest of justice to set aside the judgment.This Tribunal has considered the five areas and notes the following: That the reason (s) given for failure to enter appearance and file Defence are not convincing,

That the duration of time between filing the Application for setting aside and when the Interlocutory Judgment was entered is approximately 3 years.

That the filed Defence fails to even provide evidence of payment of the loan and as such does not raise real triable issues.

That the Claimant will not suffer any serious prejudice and is not opposed to being paid throw away costs in the event of setting aside.

We have considered the Application and looked at the submissions and hereby in the interest of justice the following orders:i. We set aside the Interlocutory Judgment of 26th September, 2019. ii. The Defence is deemed as duly filed on payment of requisite fees.iii. We award thrown away cost in the tune of Kshs. 20,000/= in favour of the Claimant.iv. Mention for Pre-trial directions on 11. 12. 2023. Notice to issue.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. Hon. Beatrice Kimemia Chairperson Signed 31. 8.2023Hon. J. Mwatsama Deputy Chairperson Signed 31. 8.2023Hon. Beatrice Sawe Member Signed 31. 8.2023Hon. Fridah Lotuiya Member Signed 31. 8.2023Hon. Philip Gichuki Member Signed 31. 8.2023Hon. Michael Chesikaw Member Signed 31. 8.2023Hon. Paul Aol Member Signed 31. 8.2023Tribunal Clerk JemimahNzuva advocate for the Respondent.No appearance by ClaimantJanet Jackson LLP- No appearanceHon. Beatrice Kimemia Chairperson Signed 31. 8.2023NRB.CTC.NO. 259 OF 2019 RULING A.W.N 0