Case ID:176185

Thomas Muthee Kianjai v Menya Services Sacco Limited [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 511 of 2019

Parties:

Thomas Muthee Kianjai v Menya Services Sacco Limited

Date Delivered:

06 May 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

Hon. B. Kimemia - Chairperson, Hon. J. Mwatsama - Deputy Chairperson & Mr. P. Gichuki - Member

Citation:

Thomas Muthee Kianjai v Menya Services Sacco Limited [2021] eKLR

Court Division:

Tribunal

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.511OF 2019

THOMAS MUTHEE KIANJAI...........................................................CLAIMANT

VERSUS

MENYA SERVICES SACCO LIMITED.......................................RESPONDENT

RULING

1. The Applicants have filed an Application dated

13.1.2021.

seeking orders:

(i) That the Honorable court be pleased to certify this application of utmost urgency and to hear it ex-parte and on a priority basis in the 1

st

instance;

(ii) That the Honourable court be pleased to issue an order for stay of execution of the judgment/decre, certificate of costs and all Consequential Orders herein pending the interparties hearing and determination of this Application;

(iii) That the Honourable court be pleased to set aside the judgment/decree, Certificate of Costs and all Consequential Orders herein and grant the defendants unconditional leave to defend; and

(iv) That costs of the Application be provided for.

2. The Application is based on the grounds that:

a. The Respondents were never served with Summons to enter Appearance.

b. Respondent have a stay and arguable defence which raises very weighty triable issues.

c. Plaintiff will suffer no prejudice if the orders are granted.

3. The Application was supported by the Affidavit of

Paul

Gitonga Cosmas Arachi

sworn on

13.1.2021

stating they were never served with Summons to enter Appearance.

4. The Claimant opposed the Application and filed a Replying Affidavit stating the Application is meant to delay and obstruct the course of justice as the Respondent/Applicant had been rightly served instructed

Counsel G.M. Wanjohi

to enter Appearance which he did via Memorandum of Appearance dated

23.10.2019

but did not file a Defence.

5. The Applicant in the further Affidavit dated

24.2.2021

and filed on

2.3.2021

acknowledged service of the summons to enter Appearance and instructed

G.M Wanjohi

to defend their course but they failed.

6. The parties were directed to canvass the Application by way of written submissions. The Applicants filed their submissions dated

24.2.2021

on

2

nd

March 2021.

The Claimant/Respondent submissions were dated

9.3.2021

and filed on even date.

7. We have considered the application and submissions. The Respondent was duly filed failed to enter Appearance, interlocutory judgment was entered against them then they awoke from slumber when a Notice of Entry of judgment was served on them.

The Respondent contend their draft Defence raises weighty triable issues.

Having perused the Defence therein the same is an admission to the claim.

8. We have considered the Application and the submissions herein. The issue is one whether Stay of Execution should be granted?

It is in the interest of justice that this Tribunal exercises its discretion with caution not to abuse the court process and for justice to be seen to be done.

Order 42 Rule 6 (2) Civil Procedure Rule

lays down the action which a party must establish in order for this Tribunal to order stay of execution.

The Rule provides:

“ No order for stay of execution should be made under sub rule (I) unless

:

a. The court is satisfied that substantial loss may result to the applicant unless the order is made and the Application has been made without unreasonable delay and

b. Such security as the court orders for the due performance of such desirable order as may ultimately be binding on him has been given by the Applicant.

c. The Question then would be, has the Applicant proved the substantial loss he may undergo if the order is not made?

None whatsoever, since that the Respondent is servicing a loan and that in a Special General Meeting held on

8.1.2017

it was unanimously agreed that members wishing to withdraw would only do so in the year 2022.

9. We find the said resolution unreasonable and not fair to the Claimant or members of the Respondent.

10.

Conclusion

a. We find the Application fails to meet the threshold for grant of stay of execution and therefore dismissed with costs.

b.

The Judgment Creditor to proceed to the execution process.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF MAY, 2021.

Hon. B. Kimemia Chairperson Signed 6.5.2021

Hon. J. Mwatsama Deputy Chairperson Signed 6.5.2021

Mr. P. Gichuki Member Signed 6.5.2021

Tribunal Clerk Leweri

No appearance

Hon. B. Kimemia Chairperson Signed 6.5.2021