REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.13 OF 2021
EASTLEIGH ROUTE SACCO LIMITED............................CLAIMANT
VERSUS
EVANS NJOROGE IHURA...............................................RESPONDENT
RULING
The matter for determination is as Notice of Motion Application dated 31.3.2021 filed on 14.4.2021 seeking the following prayers:
1. That the Respondent’s Statement of Defence dated 25th February, 2021 be struck out.
2. That this Honourable Court be pleased to enter summary judgment for the Claimant/Applicant against the Respondent herein as prayed in the Statement of Claim plus costs and interest thereof.
3. That the Defendant/Respondent do pay the costs of this Application.
4. That this Honourable court be pleased to issue any other relief that it may deem fit.
And the grounds on the face of the Application is supported by Affidavit of Patrick Kinyua.
The same is opposed vide the Replying Affidavit of Evans Njoroge filed on 10.5.2021.
The Application was ordered to be dispensed with by way of written submissions. The Claimant filed written submissions on 16.6.2021 while the Respondent filed on 8.6.2021.
The gist of the Application is that the Claimant prays for the Defence of the Respondent be dismissed and summary judgment be entered in favour of the Claimant.
We have carefully considered the written submissions of the parties. We note the issues raised in the claim and the Defence. The claim is based on a loan default, the defence has denied the said loan and hence the matter needs to be determined by the Tribunal. It is trite law that summary judgment should be given only in the clearest cases.
In DT Dobie & Company Limited - vs- Muchina [1982] KLR 1, it was held that no suit ought to be summarily dismissed unless it appear so hopeless that it plainly and discloses no reasonable cause of action and is so weak as to be beyond redemption. We note that in this matter, the parties should present their evidence so that the issues raised may be determined by the Tribunal.
In the circumstances therefore,
1. We find that the Application dated 31.3.2021 has no merits and dismiss the same with costs.
2. The parties to file and serve their Witness Statements and documents within 30 days herein.
3. Mention on 10.11.2021. Notice to issue.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021.
Hon. B. Kimemia Chairperson Signed 2.9.2021
Hon. J. Mwatsama Deputy Chairperson Signed 2.9.2021
Mr. Gitonga Kamiti Member Signed 2.9.2021
Mr. B. Akusala Member Signed 2.9.2021
Tribunal Clerk R. Leweri
Mr. Getange advocate for Claimant/Applicant present
No appearance for Respondent
Hon. B. Kimemia Chairperson Signed 2.9.2021