Wazee Self Help Group v Rongai Rural Sacco Limited & another [2023] KECPT 1034 (KLR)

Wazee Self Help Group v Rongai Rural Sacco Limited & another (Tribunal Case 25/E041 of 2023) [2023] KECPT 1034 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1034 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 25/E041 of 2023

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

November 30, 2023

Between

Wazee Self Help Group

Claimant

and

Rongai Rural Sacco Limited

1st Respondent

David Gichangi Kibe

2nd Respondent

Ruling

1. Matter for determination is a Notice of Motion dated 20. 6.2023. Wazee Self Help Group, who are the Claimants agreed with the 1st Respondent to save their money in their Sacco. The Claimants contributed a sum of Kshs. 173,700/= with their last deposit being in 2010. The 2nd Respondent was the Chairperson of the 1st Respondent Sacco and received all the deposits on behalf of the Sacco.

2. For close to 12 years, the Claimants have on several occasions approached the Respondents for payment of their savings and with no success, moved to court in December 2022 seeking the intervention of this Tribunal.Summons to enter appearance were given on 26th January, 2023 with Affidavit of Service filed on 15th February, 2023 indicating that the 1st Respondents were served through the 2nd Respondent. The 2nd Respondent has appended his signature on the Summons to enter appearance.

3. Upon the 1st and 2nd Respondents not entering appearance, the Claimant requested this Tribunal to enter judgement in default of entering appearance and on 30th March, 2023, this Tribunal entered Judgement for the sum of Kshs 173,000/= with interest awarded at Kshs. 5,211/= bringing the total award to Kshs. 178,911/= cost of the suit awarded of Kshs. 22,394/=

4. The Claimants later applied to this Tribunal for execution which was granted, and when the Auctioneer started making in on the Respondents, they filed a Notice of Motion under Order 10 Rule II and Order 51 Rule 1 of theCivil Procedure Rulesand, Section 3A of the Civil Procedure Act seeking a stay of execution for judgement of 30th March, 2023 (Decree dated 17th April, 2023)

5. The 2nd Respondent claims that he was never served with Summons to enter appearance and only became aware of proceedings upon the service of Warrant of Sale and Attachment of Property. He is requesting this Tribunal to set aside the ex-parte proceedings and grant him and the 1st Respondent leave to file their Statement of Defence.

6. This Tribunal on 21st June, 2023 granted the stay of execution for the Decree dated 17th April, 2023 and ordered the parties in this suit to Respondent through Written Submissions.

7. Having gone through and analyzed the Written Submissions, the following questions have still remained for determination:i.Whether this Tribunal shall set aside or vary the Judgement it entered on 30th March, 2023. (ii)Whether the 2nd Respondent is a necessary party in this suit.

Issue One Whether this Tribunal should set aside or vary the Judgement it entered on 30th March, 2023. 8. The decision to set aside or vary a Judgement is a discretionary power intended to be exercised to avoid injustice or hardship resulting either from some accidents, inadvertence or excusable mistake or error, but is not designed to assist a person who has deliberately sought whether by evasion or otherwise to obstruct or delay the course of justice. in this particular case, there is evidence on record to confirm that the 1st and 2nd Respondent were duly served to enter appearance; and even the Process Server made himself available through a Sworn Affidavit for Cross-examination, to confirm that he actually served the 1st and 2nd Respondent. They have both decided not to take that option to Cross-examine the Process Server; that he is lying under oath. The 2nd Respondent has also not denied or alleged in the alternative that the signature on the Summons to enter appearance is not his or in a forgery or an act of fraud.

9. As such, we are not convinced or are not persuaded to set aside the judgement of 30th March, 2023 and it is our position that to do so will be an injustice as the Claimants have pursued justice for their money from the year 2010.

Issue Two Whether the 2nd Respondent is a necessary party in this suit. 10. The Claimants have not brought any evidence to convince this Tribunal that the 2nd Respondent had interest or benefit in their money outside the interest of the 1st Respondent. For a party to be a necessary party in a suit, his interest must be clear or the party who seeks a party to be enjoined must demonstrate or bring justifiable grounds on why such a party should be enjoined. In this case, we see none, and in reliance to Order 1 Rule 10(2) of theCivil Procedure Rules which state:"The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms may appear to the Court to be just, order that the name of any party importantly joined, whether as Plaintiff or Defendant be struck out..."

11. We make a finding that the 2nd Respondent is an unnecessary party in this suit, he acted on behalf of the 1st Respondent.

Final Orders. 12Application dated 20. 6.2023 is considered and we order as follows:i.The Temporary Stay of Execution granted on 21st June, 2023 is vacated with the amendment that execution should only be enforced on properties of the 1st Respondent.ii.The 2nd Respondent is not a necessary party in this suit in his capacity as an Officer of the Sacco and as such has been struck off.iii.Each party to bear their own costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY ATNAIROBI THIS 30{{^TH}} 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. Mwango advocate for 2nd Respondent.Wazee Self Help Group- No appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023