Lekaram & another v Onyiego (Tribunal Case 46.E084 of 2024) [2025] KECPT 344 (KLR) (26 June 2025) (Ruling)
Neutral citation:
[2025] KECPT 344 (KLR)
Republic of Kenya
Tribunal Case 46.E084 of 2024
Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
June 26, 2025
Between
Mike Lekaram
1st Claimant
Melissa Fernandes
2nd Claimant
and
Victor Nchaga Onyiego
Respondent
Ruling
1.The Notice of Motion Application dated 18th December, 2024 is brought under Article 48 & 50 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act seeking among others:a.Spentb.That pending hearing and determination of the Application inter-parties, execution of the judgment dated 21st November, 2024 be stayed.c.That the Honourable court be pleased to set aside the ex-parte Judgement dated 21st November, 2024d.That the Honourable court be pleased to allow the Applicant cross-examine the Claimants and the matter to proceed on its own merits.e.That further to prayer 4 above, the Honourable Tribunal be pleased to issue leave for the Applicant to file his response to Statement of Claim dated 2nd February, 2024 and corresponding leave for the Claimants to respond.
2.The Application was supported by the annexed Affidavit of Victor Nchaga Onyiego on the grounds That:I.The Claimants served the Applicant with the Statement of Claim dated 2nd February, 2024 upon which the Applicant appointed the law firm of Makaka & Associates Advocates to represent him in the matter. The Applicant consequently provided full instructions to the firm to act on his behalf in the proceedings.II.That on the 18th November, 2024 the Applicant inquired from his previous Advocates on the status of the case and upon inquiry, he was dismayed to learn that the matter had proceeded ex-parte, with judgment scheduled for 21st November 2024.III.The Applicant upon perusal of the file discovered that his previous Advocate did not file any documents save for the Memorandum of appearance dated 22nd February, 2024.IV.The Applicant asserts that he did not receive any notifications from his previous Counsel regarding the progress of the case. As a result, he was not afforded the opportunity to cross-examine the Claimants or present his own evidence.V.The Applicant has now engaged the services of a new law firm to represent him in this matter and requests for an opportunity to be heard before judgment is rendered. The Applicant pleads that his nonattendance to the matter was purely non-intentional as he thought that his Counsel with full instructions would attend to the matter and advise him accordingly. The Applicant pleads that the mistakes of his previous Counsel should not be visited upon him and craves for an opportunity to heard.VI.The Applicant pleads that he has a defense that raises triable issues, and if the statement of claim is not challenged, this Honorable Tribunal may render its decision without fully considering all relevant aspects of the case. The Applicant pleads that since the matter proceeded ex-parte, he was unable to challenge or present evidence. Consequently, the Applicant filed an application on 19th November, 2024.VII.The Applicant is apprehensive that he will be condemned unheard and has brought this instant application seeking amongst other orders to stay execution and set aside the ex-parte judgment. The Applicant avers that no prejudice will be suffered by the Claimants if this Application were to be allowed as they will have an opportunity to adduce further evidence if any and cross examine him.
3.This Tribunal on 21st November, 2024 gave directions for the Application to be served, and the Respondent on 15th January, 2025 filed their Replying Affidavit Stating among others that:a.That in June 2017, the Respondent/Applicant approached them to guarantee him a business loan of Kenya Shillings One Million (Kshs. 1,000,000/=) and a personal loan of Kenya Shillings Seven Hundred and Fifty Thousand (Kshs. 750,000/=) from Sheria Sacco Society Limited.b.That consequently, the Respondent/Applicant did not perform his part of the obligations as per the loan agreement and defaulted in making the loan repayments. The Sacco then began recovery of the outstanding loan amount by deducting money from them, the Claimants'/Respondents' (guarantors') deposits/savings. That on 28th October, 2023, the Sacco deducted a total of Kshs. 103,848/- and Kshs. 96,226/- from his deposits/savings totaling to Kshs. 200,074/- for the two loans taken by the Respondent/Applicant. On the same day, the 2nd Claimant's/Respondent's savings account was debited with Kshs. 23,118/- and hence the Respondent/Applicant owes them a total of Kshs. 223,192/=c.That despite demand made and notice of intention to sue issued, the Respondent/Applicant refused and/or otherwise failed to pay the amount due or any part thereof rendering the filing of a claim in the Tribunal necessary for deducted savings/deposits. That the Respondent/Applicant filed a Memorandum of Appearance dated 22nd February, 2024 and despite having more than sufficient time, the Respondent/Applicant ignored/refused and/or failed to file a Defence/Response to Statement of Claim within the specified time and hence they filed a Request for Judgement dated 9th May, 2024 accompanied with an Affidavit of Service dated 9th May, 2024,d.That in absence of the Respondent's Statement of Defence, Summary Judgment was entered in their favour against the Respondent/Applicant in the sum of Kshs. 223,192.00/= on 23rd May, 2024 and they were directed to file written Submissions on general damages and to give the Respondent's audited accounts for the year 2024. That they filed and served their written Submissions dated 18th September, 2024 and upon confirmation of filing of submissions on 19th September, 2024, a Judgement date was set for 21st November, 2024.e.That the Respondent/Applicant, after delaying for months, filed an Application dated 19th November 2024 seeking a stay of the Judgment scheduled for 21st November, 2024, and leave to file a Response to Statement of Claim among other Orders. That Judgment was delivered on 21st November, 2024.f.That the Application dated 18th December, 2024 attaching the draft Defence/Response was filed about 10 months after the Respondent/Applicant entered appearance on 22nd February, 2024 and 3 months after the Mention on 19th September, 2024 which the Respondent's/Applicant's previous Advocates attended and were duly advised to file an Application seeking to set aside the ex-parte Judgement and to seek leave to file a Response to Statement of Claim/Defence, which they failed to do promptly.g.That the lethargy and inaction by the Respondent/Applicant and his Advocates demonstrates an inordinate, unacceptable and inexcusable delay which should not be countenanced by the Honourable Tribunal to deny them the fruits of their Judgement. That the issue of the Respondent's/Applicant's previous Advocates not filing any documents save for the Memorandum of Appearance dated 22nd February, 2024 is an internal matter over which the Tribunal cannot be able to authenticate and the unsubstantiated claims by Respondent/Applicant are only meant to delay the course of justice.h.That they have incurred huge expenses in Advocates' fees and Court fees in order to prosecute the suit and if the prayers under the Application dated 18th December, 2024 are granted, they will suffer great prejudice. That in the unlikely event that the Honourable Tribunal is inclined to allow the Application dated 18th December, 2024, it is only right and just that he be compelled to pay reasonable and sufficient throwaway costs which they propose to be Kshs. 50,000/=.
4.This Tribunal on 16th January, 2025 gave orders for the Application to be canvassed by way of written submissions. The Applicant/Respondent did not file their Submissions.The Claimants filed their submissions dated 12th March, 2025 stating among others:i.That the Application dated 18th December, 2024 attaching the draft Defence/Response is guilty of laches as it was filed about 10 months after the Respondent/Applicant/Judgment debtor entered appearance on 22nd February, 2024 and 3 months after the Mention on 19th September, 2024 which the Respondent’s/Applicant’s/Judgement debtor’s previous Advocates attended and were duly advised to file an Application seeking to set aside the ex parte Judgement and to seek leave to file a Response to Statement of Claim/Defence, which they failed to do promptly.ii.That the lethargy and inaction by the Respondent/Applicant/Judgement debtor and his Advocates demonstrates an inordinate, unacceptable and inexcusable delay which should not be countenanced by this Honourable Tribunal to deny the Claimants/Respondents the fruits of their Judgement obtained procedurally.iii.That the issue of the Respondent’s/Applicant’s/Judgement debtor’s previous Advocates not filing any documents save for the Memorandum of Appearance dated 22nd February, 2024 is an internal matter over which the Tribunal cannot be able to authenticate and the unsubstantiated claims by Respondent/Applicant/Judgement debtor are only meant to delay the course of justice.iv.That “equity aids the vigilant and not the indolent” as the case is with the Respondent/Applicant/Judgement debtor who has slumbered on his rights to defend the suit within the statutory time frames and for far too long. The Respondent’s/Applicant’s/Judgement debtor’s indolence in failing to file a Defence/Response within the stipulated time frames should not be occasioned on the Claimants/Respondents herein who have exercised their Constitutional rights within the ambits of the law. In the absence of any credible explanation for the inordinate delay, the Honourable Tribunal ought to decline to exercise discretion in his favour.v.The Application dated 18th December, 2024 offends Section 1A & 1B of the Civil Procedure Act which provides for overriding objectives of the Act specifically to facilitate the expeditious and efficient disposal of the business of the Court. We assert that the Respondent’s/Applicant’s/Judgement debtor’s Application dated 18th December, 2024 has been brought at such a late stage in this matter as the Claimants/Respondents/Decree-holders we have already extracted a Decree dated 9th January, 2025 and Warrants of Attachment and Sale dated 23rd January, 2025 and are in the process of execution.vi.That the draft Defence/Response attached in the Application dated 18th December, 2024 does not raise any triable issues as the contents are only mere denials of the allegations made against the Respondent/Applicant/Judgement debtor. The Respondent/Applicant/Judgement debtor has only denied the contents of the Statement of Claim and has not provided an elaborate response to the substantial allegations made against him in the Statement of Claim.
5.We have considered the application and the Response filed, and the only question remaining for determination is as to whether the Applicant has satisfied the test for setting aside.Has the Applicant satisfied the test for setting aside?Our beginning point in considering whether we should set aside our Judgement of 21 st November, 2024 is to look at the history of this case and the environment created by both the Claimants and the Respondent to prosecute the case.The conduct of a party seeking to set aside a judgment order is primarily governed by the Civil Procedure Rules, particularly Order 10, rule 11 and Order 12, rule 7. Order 10 provides the consequences of non-appearance after being served with a Memorandum of Appearance; failure to file a Defence after being served with a Memorandum of Appearance and failure to serve a Memorandum of Appearance and Statement of Defence, while Order 12 provides the procedure to be adopted in circumstances where the Respondent has entered appearance and filed a Defence and the consequences of non-attendance by either the Plaintiff or the Respondent.Section 1A of the Civil Procedure Act enacts the overriding objective of the Civil Procedure Act and the Rules thereunder which is to facilitate the just, expeditious, proportionate, and affordable resolution of the civil disputes governed by the Civil Procedure Act . The text states thus:(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. (2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1). (3) A party to civil proceedings or an Advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.”Section 1B of the Civil Procedure Act enacts the duty of the Court in respect to the overriding objective which is to handle all matters presented before the Court with a view of attaining a just determination; efficient disposal of the business of the Court; efficient use of the available judicial and administrative resources; timely disposal of the proceedings at a cost affordable by the respective parties; and use of suitable technology. The text reads thus:“ (1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and (e) the use of suitable technology.”The main concern of this Tribunal is to do justice to the parties, and having looked at Order 10, Rule 11 and Order 12, Rule 7 which gives this Tribunal the power to set aside its judgement of 21 st November, 2024 on just terms, first we are not persuaded that the threshold for setting aside has been met. Second, we are not persuaded that the Judgement was given irregularly. Third, we are also not persuaded that there was some mistake or error with our judgement that need a re-look. Fourth, we are not persuaded that the Respondent has raised triable issues in their draft statement of Defence that need a hearing to determine.Final OrdersThe Notice of Motion Application dated 18th December, 2024 is not merited fails with costs.File ordered as closed
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26 TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26.6.2025 HON. BEATRICE SAWE - MEMBER SIGNED 26.6.2025 HON. FRIDAH LOTUIYA - MEMBER SIGNED 26.6.2025 HON. PHILIP GICHUKI - MEMBER SIGNED 26.6.2025 HON. MICHAEL CHESIKAW - MEMBER SIGNED 26.6.2025 HON. P. AOL - MEMBER SIGNED 26.6.2025 Tribunal Clerk GechikoNo appearance by partiesRuling delivered in their absence.