LSK Sacco Society Ltd v Adipo (Tribunal Case 623/ E734 of 2020) [2024] KECPT 1820 (KLR) (31 October 2024) (Ruling)
Neutral citation:
[2024] KECPT 1820 (KLR)
Republic of Kenya
Tribunal Case 623/ E734 of 2020
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 31, 2024
Between
LSK Sacco Society Ltd
Claimant
and
Godrick Kennedy Adipo
Respondent
Ruling
1.Before this Tribunal for determination is a Notice of Motion Application dated February 24, 2024 seeking;i.Spent on 20/3/2024ii.Spent on 20/4/3024iii.That this Tribunal be pleased to stay any further proceedings arising from the Interlocutory Judgement entered on January 11, 2024 and Decree dated 5th February, 2024 pending the hearing and determination of this Application inter-parties.iv.That the Interlocutory Judgement entered on 11th January, 2024 and Decree dated 5th February, 2024 be set aside together with consequential orders thereto and this matter to proceed to trial on merit.v.That the Respondent’svi.Statement of Defence and List of Documents dated 10th May 2021 be admitted as duly filed and served upon payment of the requisite Court fees and do form part of the Tribunal records.vii.That the costs of this Application be in the cause.
2.In 2021, the Claimant/Respondent granted a Loan of Kshs. 3,050,000/= to the Respondent/Applicant who was her member no. XXXXXX. This loan was to be repaid within 72 months at 1% monthly interest legible and was guaranteed by members of the Sacco as indicated in the Loan Application dated 28/10/2021.
3.The inconsistent repayment of the Loan and interest resulted into default which made the Claimant/Respondent to offset the Respondent’s deposit of Kshs. 927,299.29/= plus the deposits/shares of four (4) of his guarantors which left a balance of Kshs. 660,723.89/= as outstanding Loan as at 8th September, 2023 in the account of the Respondent/Applicant which continue to attract 1% interest per month.
4.Several demand notices and emails were sent to the Respondent/Applicant to regularize the account which did not elicit any response. The Claimant/Respondent then filed a Statement of Claim dated 25th September, 2023 in the Tribunal and prayed that judgement be entered against the Respondent for payment of Kshs. 660,723.89/= with interest of 1% per month from 8th September, 2023 until payment is made in full.
5.In support of their Claim, the Claimants annexed a Witness Statement of Mr. Patrick Muthoni – Credit Manager and List of Documents comprising of;(i)Loan Application form,(ii)Copy of Cheque,(iii)Copy of Loan Statement,(iv)Copies of Notices etc.
6.The Tribunal prepared Summons to enter appearance dated 12th October, 2023 and gave the Respondents/Applicants 15 days from the date of service to enter appearance in the Claim. The in-house counsel for the Claimant/Respondent M/s Melisa Wanjiku Njoroge served the said summons upon the Respondent through WhatsApp of phone no. 072XXXXXXXXX7 of the Respondent and through email on 17/10/2023; thereafter, she filed an affidavit of service Application dated 17/11/2023.
7.When the Respondent/Applicant failed to file Defence after entering appearance on 30th October, 2023, the Claimants under order 10 rule 10 of the Civil Procedure Rules 2010 filed an Application and requested for a Summary judgement against the Respondent for Kshs. 660,723.89/= plus cost and interest. On 11/1/2024, the Tribunal entered judgement as follows:
Respondent/Applicant’s Case.
8.The Respondent/Applicant contend that the claim proceeded without a Defence because the case number typed/written on the face of the Summons was not correct and that it caused some confusion.
9.Having examined the evidence on record and the Written Submissions of the Respondent/Applicant and the Claimant/Respondent together with the authorities cited, we isolate three (3) issues for determination.1.Whether the Summary judgement entered on 11/1/2024 was regular or irregular?2.Whether the Summary Judgement entered on 11/1/2024 and the decree dated 5/2/2024 can be set aside together with the consequential orders thereto.3.Who should bear the cost of the Application.
Issue 1: Whether the Summary Judgement entered on 11/1/2024 was regular or irregular?
10.In the case of Kenya Qatar Diaspora Sacco Ltd and Rev. Kabakkuk K.O Wamududa Case no 418 of 2020, this Tribunal under paragraph 14 gave two (2) instances where a judgement in default of Appearance may be tampered with;i.Irregular Judgement: Where service of Summons to enter appearance was inadequate.ii.Regular Judgement; Where service of Summons was effected but there is an arguable Defence and compelling reasons preferred as to why the same was not filed in time.
11.The Respondent/Applicant contend that the Summary Judgement was an Irregular Judgement and called the wrong case number written of the Summons to enter appearance as a fundamental irregularity. Service of Summons to enter appearance is an imperative log in the Constitution to serve a fair trial of a matter. It plays the role of inviting the other party to state his/her case in line with the principle of natural justice. This is emphatically stated in order 5 rule(1) of the Civil Procedure Rules 2010;
12.We have examined the Summons to enter appearance dated 12th October was served on the Respondent via his WhatsApp number 072XXXXXXX7 and through his email by the in-house counsel of the Respondent and observe that apart from the mistake of the registry to allocate Case no. E734 of 2023 while migrating to e-filling they indicated E735 on the face of the Summons.We further note that all other details in the Summons are correct including the old file number 623.
13.On the same breath, while filling Notice of Appearance Application dated 30th October, 2023, the Respondent/ Applicant indicated the same wrong case no. E735. The error was later corrected by the Tribunal’s registry which we note did not change the substance of the Claim or any evidence on record. The argument by the Respondent/Applicant that the Summons served were fundamentally irregular because of a case number error is not persuasive to render a Judgement irregular.
14.In addition, the Respondent under Paragraph 3 of his Supporting Affidavit and Paragraph 5 of his Written Submissions, admit that he was served and being an advocate of the High Court of Kenya, he is expected to have within the specified time frame, filed his Defence on the matter.Order 7 Rule 1 of the Civil procedure Rules 2010 speaks to this as it provides thus:
15.The Respondent entered appearance on 30th October, 2023 but failed to file Defence within the timeline set in the Summons.It is apparent that prayer (v) of the Respondent’s Notice of Motion Application dated 24th February, 2024 is an afterthought and an attempt to buy some time.
16.After analyzing the facts of this matter, we have come to the conclusion that the Summary Judgement entered on 11th January, 2023 was regular.
Issue 2: Whether the Summary Judgement entered on 11/1/2024 and the decree dated 5/2/2024 can be set aside?
17.In his Defence, the Respondent/Applicant has not disputed that he borrowed and was granted a Loan of Kshs. 3,050,000/= by the Claimant. It is not in dispute that the Respondent/Applicant defaulted in the repayment of the Loan to the extent that the Claimant went after the guarantors after off-setting his deposits/Savings/Shares.
18.The Respondent/Applicant’s Submission that the error in the case number led him not to file a Defence/response holding a belief that the same was done mala fide to deny him the opportunity to defend the suit. A plain interpretation of this line of thought is nothing but a diversionary tactic of fishing for a credible excuse after failing to defend the suit. We concur with the Claimants/Respondents that nothing hindered the Respondent/Applicant from filing his Defence other than the error in the case number which could have been corrected and the same was corrected instantly by the Tribunal registry when the error was brought to attention.
19.A casual reading of the Respondent’s evidence on record including his Written Submissions does not demonstrate an impression that he has an arguable Defence. We are therefore of the view that to tamper with a Judgement of this Tribunal in order to entertain Proceedings that may end up with the same outcome.
20.In the case of Sammeer Africa Ltd. v Aggarwab & Sons Ltd (2013) eKLR, the Court considered a case of failure to file a Statement of Defence in time and had this to say;
21.The upshot of this decision is that a Court would be wasting its time by reopening a case whose outcome is almost certain. This would be said to be the same as the instant case before the Tribunal.
22.Although the Respondent/Applicant has invoked the Provisions of Order 10 Rule 11 of the Civil Procedure Rules 2010 which read;The Tribunal is alive to the discretionary powers bestowed upon it but we are conscious that this discretion should not be abused. It must be exercised judiciously and guarded jealously from abuse.
23.Having affirmed that the Summary Judgement entered on 11/1/2024 was entered regularly, we hereby decline to set aside our judgement.Consequentially, the Notice of Motion Application dated February 24, 2024 is found to be without merit and must fail.Our Summary Judgement dated 11/1/2024 is upheld together with the consequential orders.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024.HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 31.10.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 31.10.2024HON. BEATRICE SAWE - MEMBER - SIGNED - 31.10.2024HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 31.10.2024HON. PHILIP GICHUKI - MEMBER - SIGNED - 31.10.2024HON. MICHAEL CHESIKAW - MEMBER - SIGNED - 31.10.2024HON. PAUL AOL - MEMBER - SIGNED - 31.10.2024Tribunal Clerk - JemimahNo appearance for the parties.HON. B. KIMEMIA - CHAIRPERSON - SIGNED - 31.10.2024