1.This is an appeal from the ruling of the chief magistrate Francis Kyambia given on 5/4/2019. In the said ruling the court struck out the statement of defence as it had no triable issues, and entered summary judgment in favour of the Plaintiff, Now Respondent for Ksh. 1,700,000 with interest, plus costs of the suit. The court declined prayer (b) and ordered be subject to proof.
2.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
3.This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd  EA 123 and Peters vs Sunday Post Limited  EA 424 where in the latter case, the court therein rendered itself as follows: -
4.The Plaintiff averred that it is a registered owner of an apartment. The plaintiff expressed interest to buy two portions A16 and A17. The plaintiff paid a sum of Ksh. 1,700,000/= to secure land. The Defendant drew a Lease for Ksh. 8,300,000/= each which was a departure from the pre contract terms. The particulars of breach are set out.
5.The plaintiff seeks refund of a deposit of Ksh. 1,7000,000/=. The Defendant filed defence. They stated that a sum of 10% of the purchase price was to be forfeited as per agreement between the parties.
6.The defence was that the cost for the project rose from 7,800,000 to 8,400,000/=. They are also of the view that this was a cooperative dispute that should have been dealt at the cooperative tribunal under section 77 of the Cooperative Society Act.
7.The correct section is section 76 of which provides as doth: -
8.These two issues were triable. It is a strong thing to strike out a pleading. However, members of a Co-operative Society must litigate at the right place. That was however not addressed before me. In the case of DT Dobie & Company Ltd vs Muchina  eKLR it was stated thus;
10.In the case of The Co-Operative Merchant Bank Ltd. v George Fredrick Wekesa (Civil Appeal No. 54 of 1999) the Court of Appeal stated as follows: -
11.In Yaya Towers Limited v Trade Bank Limited (In Liquidation) (Civil Appeal No. 35 of 2000) the same court expressed itself thus: -
12.The bottom line is that there are at least 2 triable issues. I am unable to agree with the trial court that the case was hopeless and the defendant had no defence. If it is true that the 10% was forfeited, then there was nothing to determine. Secondly there is an issue of the buyers being members of a corporative society. If so, then the court below has no jurisdiction. Without jurisdiction it cannot act.
14.This was stated succinctly in the case of I could also see the dilemma of that court when they posited that the issue of General damages be dealt with at trial. This was an issue that could have been dealt with fully at the hearing. Triable defence does not need to succeed.
15.I therefore set aside the order striking out the defence. I am tempted to strike out the plaintiff suit but I refrain from doing so. Let the court below deal with the issue of the court lacking jurisdiction either on application of the parties or on its own motion. In the circumstance, I am satisfied that the Appeal is merited.
16.Lastly, on the issue of costs, the same follow the event as guided by section 27 of the Civil Procedure Act. The Respondent being the successful party is entitled to costs and I so award.
17.I hereby now make the following orders: -a.The appeal herein is hereby allowed.b.Costs of the Respondentc.The suit be set down for hearing before the lower court.