Ngao Yetu Sacco Limited v Gitonga (Tribunal Case 224 of 2021) [2024] KECPT 1696 (KLR) (3 October 2024) (Ruling)
Neutral citation:
[2024] KECPT 1696 (KLR)
Republic of Kenya
Tribunal Case 224 of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 3, 2024
Between
Ngao Yetu Sacco Limited
Claimant
and
Judith Mwendwa Gitonga
Respondent
Ruling
1.This ruling dispenses with the Respondent’s Notice of Motion Application dated 20th May 2024 supported by an affidavit sworn by the respondent, Judith Mwendwa Gitonga, and brought under Section 1A,1B 3A 63 of the Civil Procedure Act, 2010 Order12 Rule 7, Order 51 of the Civil Procedure Rules, Rule 17 of the Cooperative Tribunal (Practice & Procedure Rules) and all other enabling provisions of the Law. The Application seeks the following orders:1.Spent2.Spent3.Spent4.The Honourable Tribunal be pleased to grant the Respondent/Applicant leave to file a response of Claim out of time5.Costs be in the Cause
2.The Application is premised on the grounds on its face which are inter alia that: on 8th May 2024, this Tribunal issued Warrant of Arrest against the Defendant/Applicant arising from a decree issued for Kshs. 299,169,24/=(sic). That the Respondent did not file a response to the claim on time as there were ongoing efforts to settle the matter out of court and she was hopeful that the negotiations would settle the matter. The Applicants aver that unless this Tribunal sets aside the warrants, the Respondent shall have been condemned.
3.The Respondents filed a Replying Affidavit. In their response, the Respondents depone that the Application is frivolous and an abuse to the court’s process. This is because the Applicant has not in any way denied the debt owed, and that the Applicants even went ahead to plead financial distress in open court.
4.The Application was canvassed via written submissions and both parties filed their submissions.
Issues for Determination
5.The Application has presented the following issues for determination;i.Whether the Applicant has satisfied the court to grant the Respondent/Applicant leave to file a response of Claim out of time.
Analysis
6.It is not in dispute that the Respondent was a member of the Claimant. It is not in dispute that the Respondent was given a loan by the Claimant. It is also not in dispute that an ex-parte judgement was entered on 5th October 2021 against the Respondent for the sum of Kshs. 223,866/=. It is also not in dispute that the Applicant was aware of the Claim herein, as her excuse for not entering appearance is that they were trying an out of court settlement.
7.Based on the above undisputed facts, and particularly that judgement has been entered in this matter, it is impossible to allow the Applicant to file a Response of the Claim out of time. A response can only be filed before a judgement is entered, or in instances where the judgement debtor applies to the court to set aside the judgement, and that his prayer is granted. In this case, no such prayer was sought.
8.The upshot of the foregoing is that we find that the Notice of Motion Application dated 20th May 2024 lacks merit and is hereby dismissed with costs.Default judgment of 5.10.2021 is upheld.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024.Hon. B. Kimemia - Chairperson Signed 3.10.2024Hon. J. Mwatsama - Deputy Chairperson Signed 3.10.2024Hon. Beatrice Sawe - Member Signed 3.10.2024Hon. Fridah Lotuiya - Member Signed 3.10.2024Hon. Philip Gichuki - Member Signed 3.10.2024Hon. Michael Chesikaw - Member Signed 3.10.2024Hon. Paul Aol - Member Signed 3.10.2024Tribunal Clerk MutaiMs. Karimi advocate holding brief for Mr. Achach for the Respondent/Applicant.Ngao Yetu Sacco- No appearance.Hon. J. Mwatsama - Deputy Chairperson Signed 3.10.2024