Watee v Radar Guards Savings and Credit Cooperative Society Limited [2023] KECPT 411 (KLR)

Watee v Radar Guards Savings and Credit Cooperative Society Limited (Tribunal Case 263 of 2021) [2023] KECPT 411 (KLR) (Commercial & Admiralty) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 411 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Commercial and Admiralty

Tribunal Case 263 of 2021

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

April 27, 2023

Between

Danice Philip Mwalumba Watee

Claimant

and

Radar Guards Savings and Credit Cooperative Society Limited

Respondent

Ruling

1. The claim herein was brought by the Claimant vide Statement of Claim dated June 8, 2021 and filed on June 16, 2021. On July 9, 2021 the Respondent’s advocate filed a Memorandum of Appearance dated July 1, 2021.

2. On August 20, 2021 the Claimant’s advocate filed a request judgment against the Respondent who entered appearance on July 9, 2021 but failed to file a Defence within the time allowed.The Tribunal on September 24, 2021 for the Claimant against the Respondent in the sum of Kshs 100,322/= plus costs and interest.

Application to set aside 3. The Respondent on October 14, 2021, filed a Notice of Motion dated October 13, 2021 praying for orders:a.Spent.b.That pending the hearing and determination of this application this Honourable court do order stay of exparte judgment entered on September 24, 2021 and decree issued on October 5, 2021. c.That in the alternative this Honourable court do make such other interlocutory orders as it may deem fit and just expedient pending the hearing and determination of this application.d.That the Respondent herein be allowed to defend this suit unconditionally.e.That costs of the application be provided for.

4. The Application is premised on the grounds set out thereunder and supported by the Affidavit of one Job Onsongo Osoro sworn on 13th October, 2021 and filed on October 14, 2021. It is contended by the Respondent /Applicant on the grounds and in the Supporting Affidavit:a.That it was not served with the request for judgment as required by law.b.That the Respondent/Applicant has a good Defence/Response that raises triable issues, which can only be determined by means of vira voce evidence.c.That unless the exparte judgment entered on September 24, 2021 is reviewed and Consequential Orders set aside the Applicant would suffer irreparable damage and loss.

5. In opposing the Respondent’s Application, the Claimant filed on February 11, 2022, a Replying Affidavit sworn on November 15, 2021.

6. The Claimant argues that the Respondent has not met the requirements for a Stay of Execution and that the Notice of Motion dated October 13, 2021 is baseless, is an abuse of the process and offends the provisions of the Cooperative Tribunal Practice and Procedure Rules 2009, the Civil Procedure Act and the Rules.Paragraph 10 of the Replying Affidavit sets out the statements of merits of his case.

Determination 7. We have read the Respondent’s Application and the Affidavit in support thereof and also the Applicant’s Replying Affidavit.We have also perused the submissions filed by both parties and the authorities attached thereto and conclude as follows:i.It is not in dispute that the summons and pleadings were properly served upon the Respondent.ii.It is not in dispute that the Respondent filed the Memorandum of Appearance but failed to file a Statement of Defence within the requisite period of time.The judgment was therefore regular after the requisite period.iii.There is no requirement known to us and no law has been cited to support the Respondent’s argument that it ought to have been served with the request for judgment herein.iv.The Respondent has not demonstrated that it would suffer any damage or loss if the orders are granted.v.The Respondent’s draft Statement of Defence annexed to the Supporting Affidavit marked as annexture “J003” is made up of mere denials and does not raise any issues warranting a trial.In determination, we find that the Respondent’s Application dated October 13, 2021 lacks merit and the same is hereby dismissed with costs. Default judgment entered on September 24, 2021 is upheld.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA, CHAIRPERSON, SIGNED APRIL 27, 2023HON. J. MWATSAMA, DEPUTY CHAIRPERSON, SIGNED APRIL 27, 2023HON. BEATRICE SAWE, MEMBER SIGNED APRIL 27, 2023HON. FRIDAH LOTUIYA, MEMBER, SIGNED APRIL 27, 2023HON. PHILIP GICHUKI, MEMBER, SIGNED APRIL 27, 2023HON. MICHAEL CHESIKAW, MEMBER SIGNED, APRIL 27, 2023HON. PAUL AOL, MEMBER, SIGNED APRIL 27, 2023TRIBUNAL CLERK JEMIMAH/JONAHApplication dated October 13, 2021 lacks merit and is dismissed with costs.No appearance by parties.Ruling delivered in absence of parties.HON. J. MWATSAMA DEPUTY, CHAIRPERSON, SIGNED APRIL 27, 2023