Biashara Sacco Soc. Ltd v Ngari [2022] KECPT 182 (KLR)

Biashara Sacco Soc. Ltd v Ngari (Miscellaneous Application 12 of 2019) [2022] KECPT 182 (KLR) (Civ) (17 February 2022) (Ruling)

Neutral citation: [2022] KECPT 182 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Miscellaneous Application 12 of 2019

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Biashara Sacco Soc. Ltd

Claimant

and

Charles Kuria Ngari

Respondent

Ruling

1. The application before the Tribunal for determination is dated 17/9/19. The same is brought under order 40 rule 1, 2, and 3 Civil Procedure Rules2010 Sec 1A and 1B Civil Procedure Act and sec. 78 Co-operative Societies Act Cap 490 Laws of Kenya.The Application sought for orders;-a)Spent;b)That, this Honourable court be pleased to issue a temporary order of injunction against the Respondent/defendant from in any manner whatsoever transferring, parting possession and /or alienating motor vehicle KCA 719P owned by the Respondent jointly with the applicant to any third party whatsoever until this matter is heard and determined;c)That, in addition to prayer 2 above, this honourable court do issue prosecution orders against the defendant that the motor vehicle KCA 719P be produced for safe keeping pending the hearing and final determination of this application;d)That, the costs of this application be borne by the Respondents.The application is supported by the grounds on the face of the application and supporting affidavit of Joseph Kamau Nyamuchu.The applicant’s avers the motor vehicle KCA 719P forms part of financial security between the parties and is jointly registered between the parties.The respondent is in default of a loan with an outstanding balance of Kshs. 381,208. 31. The respondent has hidden the motor vehicle and denied the applicant its rights under the loan agreement and there is buyer for the motor vehicle to be passed on to a 3rd party.

2. The respondent filed a replying affidavit sworn on 8/9/21. On 28/9/21 stating the application is full of lies and half-truths.That the applicant is aware the respondent does not have the subject motor vehicle and its loss is subject to police investigates vide OB No. 50/9/4/2019. The Applicant advanced the monies and the motor vehicle was to be registered in their joint names.The Applicant thus took the original log books and all facilitating documents.He further states he kept up with the instalments until he got incarcerated and fell in arears and the Applicant took the motor vehicle until he cleared the arrears.That the motor vehicle was released to his wife who continued paying instalments until the registered owner took back her vehicle and this was reported to the Applicant.The said motor vehicle is not in his possession. He cannot produce what he does not have.

3. Parties were ordered to file written submissions with the Applicants filing their submissions dated 25/10/21 on 3/11/21 and the respondent filing their written submissions dated 10/11/21 on 11/11/21. The issue for determination is just one;-Whether the Respondent is in possession of motor vehicle KCA 719P?The applicants assert the respondent is hiding the subject motor vehicle which was among the sureties given for the loan advanced to the Respondent.That the loan remains unpaid and an attempt to realize the security has been difficult because the Respondent has hidden the motor vehicle KCA 719P. The Respondent on their end aver the Applicant’s breach the loan terms. They were to register the motor vehicle in both names to secure the loan and the same has not done.A report was done to the police via OB Number 50/9/4/2019 to which the Applicant have not denied or placed contrary evidence of the Respondent and thus the orders sought.The applicant has not indicated whether the motor vehicle was registered in both the applicant’s and respondent’s name as should have been.The respondent further avers the motor vehicle was not registered in his name but was pending transfer.We thus are convinced that the subject motor vehicle KCA 719P is not in possession of the respondent and thus the orders sought.

4. The application dated 17/9/2019 is dismissed with no orders as to costs.

RULING, PREPARE READ AND DELIVERED ON VIRTUALLY THIS 17TH DAY OF FEBRUARY, 2022 WITH WHOM P. GICHUKI AND B. AKUSALA AGREE.Hon. Mjeni Mwatsama Deputy Chairperson Signed 17. 2.2022P. Gichuki Member Signed 17. 2.2022B. Akusala Member Signed 17. 2.2022In the presenceMaina for the ApplicantsNo Appearance for RespondentFile marked as closed.SignedHon. Mjeni MwatsamaDeputy Chairperson17/2/22