Vision Point Sacco Ltd v Nyamwayo [2023] KECPT 1028 (KLR)

Vision Point Sacco Ltd v Nyamwayo (Tribunal Case 616 of 2019) [2023] KECPT 1028 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1028 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 616 of 2019

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

November 30, 2023

Between

Vision Point Sacco Ltd

Claimant

and

Patroba Makori Nyamwayo

Respondent

Ruling

Facts Of The Case . 1. On 31ST May, 2011, the Plaintiff advanced to the Defendant a loan of Kshs. 300,000/= that was to be repaid at an interest of 1% per month for a period of 24 months.The Defendant never made any attempt to service the loan and as at 21st May, 2019. The loan plus interest had accrued to a sum of Kshs 531,624. 64/=

2. On 14th October, 2019, the Plaintiff moved the Court seeking redress as the Defendant had either failed, neglected, ignored or refused to service the loan.

3. Joseph Mogaka Moemi a Process Server, has sworn an Affidavit on record, indicating that on 20th January, 2020 he served the Defendant at his homestead with the notice to enter appearance and other documents and on 23rd January, 2020, the Defendant entered appearance in person.

4. On 10th February, 2021, the Plaintiff requested this Tribunal to enter Judgement in default of filing a Statement of Defence and on 10th October, 2021, this Tribunal entered Judgement for the Principal Sum of Kshs. 531,624. 64/= and interest of Kshs. 138,222. 41/= bringing the total to Kshs. 669,847. 05/=. The cost of the suit was awarded at Kshs 74,920/=

5. On 17th May, 2022, the Plaintiff approached this Tribunal again to execute his decree of the Sum of Kshs. 773,723. 28/= and upon succeeding and instructing auctioneers to attach the Defendant’s properties, he filed a Notice of Motion under order 10 rule 11, order 22 rule 42 and order 51 of the Civil Procedure Rules seeking among other orders that:i.The Judgement of 10th October, 2021 be set aside.ii.Pending hearing and determination of his filed Application, there be a stay of execution of the decree entered against him.iii.He be granted leave to file his Defence out of time.The Application was based on the claim that he was not aware of the stipulated time for filing Defence as he acted in person. He also claims that he had no knowledge of the proceedings due to the Covid Pandemic as most operations had been scaled down.

6. This Tribunal gave directions for parties to canvass the Application by way of Written Submissions after close of service.We have looked at the submissions and analyzed the evidence adduced, and the only questions remaining for determination are:

i.Whether this Tribunal should set aside its judgement of 10th October, 2021, stay the execution of the subsequent decree extracted, and grant leave to the plaintiff to file his Defence out of time.ii.Costs of the Application. i. Whether This Tribunal Should Set Aside Its Judgement Of 10Th October, 2021, Stay The Execution Of The Subsequent Decree Extracted, And Grant Leave To The Plaintiff To File His Defence Out Of Time. 7. The Decision to set aside a Judgement and allow a party to file their Defence out of time or to stay an intended execution is a discretionary power given to courts to be exercised to avoid the likelihood of injustice or hardship resulting either frim inadvertence or excusable mistake or error, but it is not designed to assist a party who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of Justice.

8. In this particular case, the evidence on record confirms that the Defendant was duly served and supplied with documents and he even entered appearance. Even if he didn’t know the exact timeliness on when to file a Defence, it took the Plaintiff more than a year after serving the Defendant to request for judgement in default, which begs for answers to a number of questions: -i.Where was he for more than a year?ii.As a responsible citizen who works for the public, after being served as entering appearance, does he not have a duty to do some follow up on a case that he is supposed to answer on?iii.The loan was given in 2011, and he hasn’t serviced it or shown good faith in attempts to service it, why should we delay the Plaintiff the fruits of his labour that he has waited for more than 12 years?We are not convinced or persuaded to exercise discretion in favor of the Defendant. To do that will further the ends of injustice for a party that has pursued justice for a good 12 years.

Final Ordersi.The Notice of Motion Application filed on 8th June, 2022 is dismissed.ii.Costs of the Application is awarded to the Plaintiff.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023TRIBUNAL CLERK JONAHMs. Njaata advocate holding brief for Mr. Mainga advocate for claimant/RespondentB. Bochaberi advocate for Respondent- No appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023