Case ID:181955

Lucy Moraa Sure v Orient Sacco Society Limited [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 397 of 2020

Parties:

Lucy Moraa Sure v Orient Sacco Society Limited

Date Delivered:

02 Sep 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

Hon. B. Kimemia Chairperson Signed 2.9.2021 Hon. J. Mwatsama Deputy Chairperson Signed 2.9.2021 Mr. Gitonga Kamiti Member Signed 2.9.2021 Mr. B. Akusala Member Signed 2.9.2021

Citation:

Lucy Moraa Sure v Orient Sacco Society Limited [2021] eKLR

Court Division:

Tribunal

County:

Nairobi

Case Outcome:

Application allowed

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.397 OF 2020

LUCY MORAA SURE.......................................CLAIMANT

VERSUS

ORIENT SACCO SOCIETY LIMITED...RESPONDENT

RULING

1. The Application Notice of Motion dated

2.3.2021

is for determination and has been brought under

Order Rule 15 (1) b ( c)

and

d and Section 1A, 1B, and 3A of the Civil Procedure Act

and all enabling provisions of the Law.

The Application seeks for Orders:

a. The Memorandum of Response dated 6

th

November, 2020 be struck out.

b. In the alternative, Summary Judgment be entered against the Defendant for a sum of Kshs.456,000/=

c. That costs of the Application and the suit be provided for.

2. The Application is premised on the grounds on the face of the Application and Affidavit in support of

Lucy Moraa Sure

where she stated.

The Memorandum of Response contains mere denials and the same ought to be strike out.

The Respondent has not brought any documents and or evidence to challenge or support its allegations in admission to challenge the Statement of Claim.

That the Admission is only meant to delay the fair trial of the action and is an abuse of the court process and prays for the Respondent Defence to be struck out and judgment be entered in favour of the Claimant in the interest of justice.

3. The Respondent filed a Replying Affidavit in opposition to the Application and stated the Memorandum of Response had raised triable issues which were worth going to trial.

There were facts and records that ought to be looked into to wit the Respondent’s former Management Committee was removed from office in December 2016 had declared fictious dividends and the members were paid including the Claimant which amount was later recommended by an audit report that the same was to be recovered from all members.

The Respondent had filed an Affidavit of means acknowledging that it owes refundable deposits to its members and it had registered to be allowed to repay via installments to enable them remain a float.

That in any case for summary judgment to be entered on admission the same must be clear and unequivocal which is not the case.

If judgment on admission is entered against the Respondent the Respondent will effectively be driven from the seat of justice without trial.

4. That the right to be heard is a fundamental right that must not be denied to enable the Respondent ventilate its position and to be accorded the chance to defend the suit. The grant of Orders sought in the Application would greatly prejudice the Respondent for the fact the Applicant is guilty of inequitable delay as deponed and the Respondent is willing to refund the shares in instalments as per its Affidavit of means dated 17.12.2020 and thus not entitled to the exercise of this Honourable Tribunal’s discretion in their favour.

The parties filed written submissions in a bid to dispense off with the Application the Respondent filed their submissions dated

21.5.2021

on

24.5.2021

and the Claimant/Applicant filed their submissions dated

28.4.2021

filed on

29.4.2021.

Analysis

5. Order 13 Rule 2 Civil procedure Rule 2010

clearly states :

“ Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just. “

The Respondent stated the Respondent contesting the amount is an issue to be determined.

The issues to be determined are thus:

Issue one

:

Whether the Defence raise triable issue?

6. The principle that guide the court in determining whether to struck out a pleading were set out in the case of

DT Dobie & company (Kenya) Limited – vs- Joseph Mbaria Muchina and Another CA 37 of 1978 [1980]eKLR.

Madan JA

stated:

“...the court ought to act very cautiously and carefully and consider all facts of the case without embarking upon a trial thereof, before dismissing a case for not disclosing a reasonable case of action on being otherwise an abuse of the process of the court.....”

The case by Respondent in their submissions

Transcend Media Group Limited - vs- IEBC[2015] eKLR court

held:

“... striking out of a case and in the process, deprive a party of the opportunity to present their case has been held over and over the years to be a draconian measure which ought to be eyed only as a last resort and even the only in the clearest of case.”

To this end we are satisfied that indeed the Applicant has a valid claim.

The Defence does not raise valid issues or any triable issue as it were.

It denies owing the Claimant

Kshs.456,000/=

and court the same time stated amount owed to Claimant was affected due to recovery of unearthed dividends paid to its members and seeks to make payment via instalments.

In case of

National Bank of Kenya - vs- Daniel Opande Asnani[2002] eKLR

“ The law is now settled and that is the admission upon which a court of law will act to strike out a Defence and enter judgment must be clear and unambiguous.

The same admission need not be in the pleadings only. It can be discerned in any other way….I am satisfied that the debt herein had been admitted ….I do allow the Application “

With the above we are also satisfied that the admission by the mere fact the Respondents are seeking to pay via installments.

7. The upshot of the above is that the Application dated

2.3.2021

is found to be with merit in terms of prayer 2- summary judgment be entered against the Respondent for a sum of

Kshs.456,000/=

plus costs and interest in the suit.

Application is allowed in terms of prayer b with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2

ND

DAY OF SEPTEMBER, 2021

Hon. B. Kimemia Chairperson Signed 2.9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2.9.2021

Mr. Gitonga Kamiti Member Signed 2.9.2021

Mr. B. Akusala Member Signed 2.9.2021

Tribunal Clerk R. Leweri

Chacha holding for Makori for Claimant/Applicant Present

Hon. B. Kimemia Chairperson Signed 2.9.2021