Aluanga v Mokaya [2025] KECPT 362 (KLR)

Aluanga v Mokaya (Tribunal Case E941 of 2023) [2025] KECPT 362 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KECPT 362 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E941 of 2023

Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

June 26, 2025

Between

Nelly Aluanga

Claimant

and

Justus Mokaya

Respondent

Judgment

1. The statement of Claim herein dated 1/11/2023 was filed by the Claimant seeking judgment against the Respondent for:

2. a.Mandatory injunction compelling the Respondent to pay in full all his outstanding loans to the tune of Ksh 937,000l/= and which the Claimant has attached together with any interest and penalties.b.An order for reconciliation of the Claimants account held by the interested party and renewal of the Claimants attachment upon payment by the Respondent.c.Reimbursements of the total sums deducted from the towards payment of the Respondent's loan.d.General damages for the breach of contract, lost investments dividends and benefits.e.Interests on c,d and ef.Costs of the suitg.Any other order that the tribunal deems fit to grant.

3. The Claimant has included Mwalimu national Sacco as an interest party to the Claim.

4. The Claimant's Claim as per the Statement of Claim is that at all material times, the Claimant and the Respondent were and are legitimate members and depositors of the interested party, that by an agreement made between the Respondent and the interested party, the interested party agreed to grant the Respondent a loan facility in respect of his membership with it that the Claimant was one of the guarantors to the loan advanced by the interested party to the Respondent that the Respondent soon thereafter defaulted in repayment of the loan; that the interested party in it's effort to secure the payment of the outstanding loan, commenced realization of the guarantors security through deductions of the Claimant's monthly salary at Kshs.30,000/= from April 2023 indicating that the Respondent's loan of Kshs.937,000/= has been attached to the Claimant to pay that the Respondent is a man of means and has the ability to pay the loan without resulting to attaching the Claimant's savings, that the Respondent should not be permitted to benefit from his continued breach to the detriment of the Claimant. The Claimant lists particulars of breach and of loss and prejudice he attributes to the Respondent and adds that the Respondent has negligently and/ or maliciously failed to discharge his debt repayment burden in the hope that the Claimant and other guarantors would be attached to offset the loan; that the Respondent refusal to meet his obligations to repay his loan has terminated the guarantee agreement and the Claimant does not wish to be geld as his guarantor in the outstanding loan, that the Claimant has lost several investment opportunities such as share capitalization with dividends through reward in the interested party reward scheme and has been rendered incapable to meet her financial obligation like access to school fees loan and other credit for personal development. That despite demand and notice of intention to lodge the Claim, the Respondent did not regularize the account.

5. Vide a request for judgment dated 30th October 2024 filed on 13th November 2024 the Claimant requested for interlocutory judgment for:a.An order for injunction compelling the respondent to be in full and his or his outstanding loans to the tune of Kenya Shillings 937,000/= and for which the Claimant has been attached together with any interest and penalties.b.An order for reconciliation for the Claimants accounts held by the interested party and a reversal of the Claimants attachment upon payment by the respondentc.Reimbursement of the total sums deducted from the Claimant towards payment of the respondent’s loan.

6. Upon considering the request for judgment the Tribunal issued an order in terms of prayer (a) thereof leaving prayer b,c and for formal proof.

7. On 12th March 2025 the Claimant attended court for formal proof and upon taking oath produced and adopted her witness statement dated 1st November 2023 as her evidence in chief and the list of documents of even date as Claimant evidence and marked the documents therein as Claimant's exhibits 1-5. Further, the Claimant stated in her oral evidence that the respondent was her former colleague and she had guaranteed his loan and she seeks refund of her money from the respondent. Upon close of her case, the Claimant was directed to file written submissions within 14 days from the date of hearing.The Claimant filed submissions are dated 25th March 2025.

Analysis And Determination 8. In Samson J. Maitari and another versus African safari club limited and another (2010) eKLR, Emukule J. Observed: ..." I have not seen a judicial definition of the phrase formal proof. "Formal in its ordinary dictionary meaning refers to being methodical according to rules( of evidence) . On the other hand according to Halsbury Laws of England Volume 15 Paragraph 260 ;"proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as the truth or falsity of a fact. Generally, as well known, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party addresses sufficient evidence to raise a presumption that what is claimed is true the burden passes to the other party.

9. In Rosaline Mary Kahumbi versus the National bank of Kenya limited (2014 )EKLR the court held:- " in contrast, at a formal proof hearing if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or Law ... "

10. It would therefore be safe to conclude as did Mabeya J. in Peri Formuora Scaffolding versus White Lotus projects (2021 )eKLR that in this regard, in a formal Proof hearing a party with the onus of adducing evidence must produce such sufficient evidence which must satisfy the court as to it's truth.

11. Having considered all the pleadings and all the documents filed by the Claimant herein including written submissions, we find that the Claimant had the onus of proving formally the existence of an agreement between herself and the respondent upon which the entire claim would be based. No agreement of guarantee has been produced by the claimant in support of her claim that she guaranteed the Respondents claim and no evidence has been put for by the claimant to show their amount of loan borrowed by the respondent from the interested party and the portion thereof guaranteed by her.

12. Further no evidence has been adduced by the claimant to link or relate deductions on her statement to a debt granted by the Interested Party to the Respondent neither is there a formal document or communication from the interested party to indicate that attachment of Kshs 937 615. 1/= in respect to a loan taken by the respondent and guaranteed by the Claimant.

13. On account of fore going and noting that prayer (a) is not a prayer for a liquidated claim only we suo moto, review our judgment on default entered on 13/11/2024 by setting aside the summary judgment in favor of the claimant in the sum of Kenya Shillings 937,000/= and instead enter interlocutory judgment in further in favor of the claimant in terms of the request for judgment dated 30th October 2024.

14. For avoidance of doubt we reiterate that the Claimant has not successfully proved the truth of her claims. However, there being no Defence to the claim to the fact owing to the fact that by a demand letter dated 18th April 2023 the claimant's advocates did demand from the interested party a full account of the loan status of Justus Mokaya, his loan arrears and to render an accurate account of the respondents payment to date as well as the amounts that each of their clients including the claimant guaranteed to the respondent's different loans, we hold that the claimant is entitled to some of the reliefs prayed for.Consequently, we order as follows in the interest of Justice:

15. a.. Prayer (a) of the request for judgment fails for lack of proof.b.The interested party is hereby ordered to reconcile the accounts and statement of the claimant and the respondent so as to ascertain their amount of money (if any) deducted from the claimant towards settlement of the Respondent’s loan arrears.c.The interested party is hereby ordered to supply to the claimant the loan statements of the respondent and the documents of loan guarantee executed by the claimant in favor of the Respondentd.There is no order is to costs.

JUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26 .6. 2025HON. BEATRICE SAWE MEMBER SIGNED 26 .6. 2025HON. FRIDAH LOTUIYA MEMBER SIGNED 26 .6. 2025HON. PHILIP GICHUKI MEMBER SIGNED 26 .6. 2025HON. MICHAEL CHESIKAW MEMBER SIGNED 26 .6. 2025HON. PAUL AOL MEMBER SIGNED 26 .6. 2025Tribunal Clerk A.GechikoSaenyi advocate for the Interested PartyMmbifwa advocate for Claimant- No appearanceJustus Mokaya – No appearanceHON. J. MWATSAMA – DEPUTY CHAIRPERSON SIGNED 26/06/2025