REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. E62 OF 2021
RAEL WAKEI MUASYA alias RAEL SYOMBUA MUTUKU.....................................CLAIMANT
VERSUS
MATHEW MULI MUTUNGA.............................................................................1ST RESPONDENT
SIMON SILA MUTUNGA...................................................................................2ND RESPONDENT
RULING
1. The Respondent has filed A Notice of Motion Application dated 28th May 2021, seeking orders to set aside the Orders made by this Tribunal on 28th April, 2021, and all consequential orders thereto. The facts are that the Respondents neither enter appearance, nor filed a Defence even though they were procedurally served with Summons to Enter Appearance.
2. The Respondents have annexed a Draft Defence and appurtenant documents to demonstrate that they do have a triable case. The Respondents cite poverty and lack of legal fees as the reason why they ignored their duty to defend themselves, and were only spurred into action when they discovered Judgment had been entered against them and execution was imminent.
3. Even though we find the reason preferred lame, shallow and implausible, we note that the dispute relates to land, which is an emotive subject in Kenya. We have looked at the Draft Defence and we find that it raises justiciable points, which makes it necessary for this Tribunal to tamper with its erstwhile Judgment.
4. This Tribunal thus invokes the provisions of Order 10 Rule 11 of the Civil Procedure Rules 2010 which provide as follows:
“Where judgment has been entered under this Order the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.”
5. We therefore give the Respondents the benefit of doubt, and hereby set aside our Ruling of ex parte Judgment in Default of Appearance. In the interest of justice, we find that the Orders sought should be granted and the Application dated 28th May 2021 be allowed. However, the Respondents are to pay throw-away costs for their indolence.
We direct that the Claim proceeds to full trial to ascertain the merits of the case.
ORDERS
We therefore Order as follows:
(a) The Respondents’ Applications dated 28th May 2021 be and is hereby allowed;
(b) The Respondents to file and serve their Defence, witness statements and list of documents within 7 days from the date hereof;
(c) The Claimant is granted leave to file and serve a supplementary list of documents and witness statements within 7 days from the date of service;
(d) The Respondents to pay throw-away costs of Kshs. 5,000/= to the Claimant before the next Mention date;
(e) Parties to ensure strict compliance of Order 11 of the Civil Procedure Rules within 30 days hereof;
(f) Costs be in the Cause;
(g) Mention for directions on 2.12.2021.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF OCTOBER, 2021.
Hon. B. Kimemia Chairperson Signed 7.10.2021
Hon. J. Mwatsama Deputy Chairperson Signed 7.10.2021
Mr. P. Gichuki Member Signed 7.10.2021
Mr. B. Akusala Member Signed 7.10.2021
Tribunal Clerk R. Leweri
Ms. Nzau for the Claimant
No appearance for the Respondents.
Hon. J. Mwatsama Deputy Chairperson Signed 7.10.2021