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Kimotho & 6 others v Maangi (Tribunal Case 833 (E884) of 2022) [2024] KECPT 1404 (KLR) (29 August 2024) (Ruling)

Kimotho & 6 others v Maangi (Tribunal Case 833 (E884) of 2022) [2024] KECPT 1404 (KLR) (29 August 2024) (Ruling)
Citation
Kimotho & 6 others v Maangi [2024] KECPT 1404 (KLR)
Media Neutral Citation
[2024] KECPT 1404 (KLR)
Court
Cooperative Tribunal
Outcome
Allowed
Case number
Tribunal Case 833 (E884) of 2022
Attorneys
Mageto,
Judges
BM Kimemia, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
Judgment date
29 August 2024
Language
English
Type
Judgment
Original source file
Download DOCX (67.0 KB)
Collections
Date published
14 October 2024
Case action
Ruling
Filing county
Nairobi
Order
Application dated 19/6/2023 is merited. As such the Respondent’s Defence dated 30/12/2022 is struck out and enter summary judgement in favor of Claimant against the Respondent as prayed in the Statement of Claims in the sum of Kshs. 805,238/= plus cost and interest
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1.The Application for determination is a Notice of Motion dated 19/6/2023 brought under Article 159(2)(b) Constitution of Kenya, Order 36 Rule 1a Order 51 Civil Procedure Rules and Section 3A of Civil Procedure Act.The Application seeks for: -i.That the Honourable Tribunal be pleased to enter summary judgement against the Respondent as prayed in the Claimant’s Statement of claim.ii.That the costs of this suit and this Application be granted to the Claimant.
2.The Application is supported by the Supporting Affidavit of James Kariuki Kamondo who signed the Supporting Affidavit sworn on 19/6/2023. They are claiming a liquidated claim of Kshs. 115,034.00/=. They aver that they guaranteed the Respondent a loan which he took of Kshs. 1,152,000.00/= repayable in 72 monthly installments.the Respondent has defaulted since 2018 and as at February, 2022 was Kshs. 956,152.99/=. The Sacco Nacico Sacco issued a demand to the guarantors for the payment of the Respondent’s loan.The Respondent filed a Defence which is a sham, defective and aimed at delaying the course of justice. The said Defence consists of mere denials. As such, the Claimants pray for summary judgement to be entered against the Respondent.
3.What is Summary Judgement?The Court grants Summary judgement when there is no material issue of fact and it is required to enter judgement as a matter of law.Summary judgement entitles one party to judgement when the court believes no “material issue of fact” exists on the issue raised before the court, and the court must enter judgement as a matter of law.Courts grants Summary judgement when there is no material issue of fact and it is required to enter judgement as a matter of law.
4.The Respondent filed a Statement of Defence dated 30/12/2022. The Respondent admitted receiving a loan of Kshs. 1,152,000/= from Nacico Sacco. He however denied owing the Claimants the monies or that they were his guarantors.
5.The Claimants filed Written Submissions dated 2/5/2024 filed on 8/5/2024. The main issue for determination is whether the Claimant has made out a case for granting Summary judgement.Order 36 Civil Procedure Rules Stipulates:“(1)In all suits where a plaintiff seeks judgment for—(a)a liquidated demand with or without interest; or(b)the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser, where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.(2)The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.(3)Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.”As such, the above can only be used where a debt is admitted thus entitling the Claimant to obtain judgement expeditiously to save on costs and time.In the case of ICDC –vs- Dabu Enterprises Limited;“The purpose of the proceedings in an Application for Summary judgement is to enable the Plaintiff to obtain a quick judgement where there is plainly no Defence to the claims.To justify summary judgement, the matter must be plain and obvious and where it is not plain and obvious, a party to a civil litigation is not to be deprived of his right to have his case tried by a proper trial where if necessary, there has been discovery and oral evidence subject to cross-examination”
6.The Claimants relied on several precedents; that is,In the case of Janet Edwards –vs- Jamicca Beverages Limited C.A 2002/037, which is quoted with authority in the case of Lagoon Development Limited vs Prime Aluminum Casements Limited [2021] eKLR held that:“the Court is discussing the Physiology of Summary Judgement and the whole rule as a litigation tool held inter alia that: The Civil Procedure Rules represents an attempt to modernize litigation by emphasizing efficiency, proportionality and reduction of costs while maintaining principles of fairness. It does this by asking that the parties to plead in a manner which enables the Court to carry out its duty to manage cases actively, by identifying issues early, and deciding which issues need trial. The vice of the bare denial, Defence is that no one knows which issues are joined, which issues can be resolved summarily, which issues do not need resolution. This is the era of cards face-up and on the table litigation to that all can see the cards.”The Claimants further aver the debt to NACICO Sacco is not disputed and Replying Affidavit consists of mere denials of indebtness to the Claimants.The Notice of Motion is not opposed as such Application is undefended.We can only rely on his Defence to see whether the same warrants to go to trial or not.In the present circumstance, the Respondent admits to taking a loan. He therefore does not state/deny owing the Claimants who are his guarantors and deductions made from their contributions to cover for his loan.
7.In the case of Job Kilach –vs – Nation Media Group Limited held that bona fide triable issue is any matter raised by the Defendant which requires further interrogation …; He urged the court to be guided by Gupta & Continental Builders [3] which held that: -“… if no prima facie triable issue is put forward to the claim of the Plaintiff, it is the duty of the Court forthwith to enter Summary Judgement for it is as much against natural justice to shut out without proper cause a litigant from defending himself as it to keep the plaintiff out of his dues in a proper case. Prima facie triable issues ought to be allowed to go to trial just as a show of bogus Defence ought to be rejected peremptonly.”It is clear that there is no triable issue raised in the Statement of DefenceThe aim of Summary judgement is to save an innocent Claimant from an elusive Respondent for a speeding remedy.
8.As such we find the Application dated 19/6/2023 is merited. As such the Respondent’s Defence dated 30/12/2022 is struck out and enter summary judgement in favor of Claimant against the Respondent as prayed in the Statement of Claims in the sum of Kshs. 805,238/= plus cost and interest.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024.HON. B. KIMEMIA - CHAIRPERSON SIGNED 29.8.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29.8.2024HON. BEATRICE SAWE - MEMBER SIGNED 29.8.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 29.8.2024HON. PHILIP GICHUKI - MEMBER SIGNED 29.8.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 29.8.2024HON. PAUL AOL - MEMBER SIGNED 29.8.2024Tribunal Clerk - JonahMr. Nyoike advocate for the ClaimantFrancis Nyambariga Maangi – No appearanceMageto Advocate for Respondent – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29.8.2024
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