Boiwo v Boresha Sacco & 2 others [2024] KECPT 973 (KLR)

Boiwo v Boresha Sacco & 2 others (Tribunal Case 189 of 2021) [2024] KECPT 973 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 973 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 189 of 2021

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

May 30, 2024

Between

Laban Boiwo

Claimant

and

Boresha Sacco

1st Respondent

Edwin Simba (Manager Marigat Boresha Sacco Branch)

2nd Respondent

Joel Wesonga

3rd Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 29th March 2021. In the Statement of Claim, the Claimant claims that he was a member of the 1st Respondent. It is the Claimant’s position that he normally applies and gets occasional loan advances in aid of his dairy livestock and general farming. It is the Claimant’s position that on 7th December 2020, the 1st Respondent sent the 3rd Respondent to confiscate his 9 cows for default. After the Claimant followed up, the cows were returned and unfortunately, one of the in-calf cows was injured and later died. The claimant claims that the cow died as a result of the negligence of the 3rd Respondent. The claimant therefore prays for:a.Declaration that the 1st and 2nd Respondents and its agent negligently handled his in- calf.b.Compensation for the loss of his in-calf at a cost of Kshs. 150,000/=.c.Loss of income of Kshs. 600/= per day from 7. 12. 2020 until judgment is delivered.d.Damages for emotional, mental psychological suffering as well as sentimental attachment to the cow.e.Costs and interests of this suit.The Claimant filed a Witness Statement and a List of Documents in support of her claim.

2. The Respondent filed a Memorandum of Appearance dated 18th May 2021 and filed on 21st May 2021, and a Statement of Defence. In the Statement of Defence, the Respondents admits that the Claimant was its member. In Defence to the Claim, the Respondents aver that the Claimant signed a release form after confirming that the cows were in good shape. It is also the Respondent’s position that it is the Claimant who hired a motor vehicle and loaded the livestock into the motor vehicle.

3. During the hearing, the Claimant testified and produced his Witness Statement and List of Documents for adoption by the court. In cross-examination, when asked whether he had any records to show that the cow produced the claimed amount of milk, the Claimant responded that he had no record. He also said he did not produce the Occurrence Book extract. In re-examination, he stated that Justin Kiprono is his son. The Claimant also called one Charles Kipchumba, a vet officer, to testify. The Veterinary Officer produced a report he made on the cow dated 9th December 2020. On cross examination, he testified that he had not produced any document to prove that he is a vet. He testified that he treated the cow, and that he informed the Claimant to give calcium to the cow.

4. For the Respondents case, the 2nd and the 3rd Respondents testified. The 2nd Respondent informed this court that he is the manager of the 1st Respondent. He testified that they issued notice to the Claimant before they gave instructions to the auctioneer however, the same is not produced in court. The 3rd Respondent testified that they took the cattle to their yard in Eldoret and after the Claimant paid a certain amount of money, they released the cows to the Claimants sons, Justin Kiprono and Norman Kipyegon.

5. Only the Respondents filed their submissions 1st, 2nd and 3rd Respondent filed written submissions on 1st October, 2023.

Analysis 6. The tribunal has noted all the pleadings filed and the evidence adduced during the hearing. It is not in dispute that the Claimant was a member of the 1st Respondent, that he took a loan which he defaulted and the 1st Respondent sent Auctioneers to attach his cows. The dispute is whether the cows were indeed injured when being returned to the Claimant and whether the Respondents are responsible for the injury and death of the cow.

7. In Vaughan v Taff Valerly Co. {1860} 157 ER 1351 Willes J. said that:“The definition of negligence is the absence of care, but whatever may be its general description, negligence is now judicially recognized as an independent tool, the essential ingredients of which are: (a).The existence of a duty to take care owing to the plaintiff by the defendant.

(b).A breach of that duty and

(c).Damage suffered by the plaintiff which is legally deemed to be the consequences of that breach of duty.”

8. It is not in dispute that the auctioneer has a duty to properly handle the cows during the attachment and when the cows are in his custody.

9. Was this duty breached? According to the Claimant, these acts of negligence occurred during the loading, holding and offloading the cows. The Claimant testified that it is his son who went for the cows. The sons were not called to testify on the state of the cows when they were being loaded. A release order was produced in court showing that the Claimant’s sons signed that they received the cows in good condition. The Respondents claim that it is the owner of the property who gets the vehicle to ferry their property back after being released. Since the Claimant’s sons did not testify on whether they ferried the cows privately or the Respondent ferried for them, the Respondent’s evidence on this issue becomes uncontroverted.

10. One, Charles Kipchumba, who claimed to be a Veterinary Officer in Baringo testified for the Claimants. In his report, when he observed the cow, it could not wake up and he realized that the left limb was paralyzed and could not support her weight. Holes were punched in his evidence. There was nothing to show that he was a qualified Veterinary Officer. There were also no photographs to show that indeed the subject cow is the cow he examined.

11. This court will now consider whether there was negligence on the part of the Respondents. We find that duty of care has been established. However, breach has not been established. This court has not been shown on a balance of probabilities how the cow was injured and even if we were to believe the veterinary officer that the cow indeed was injured, causation has not been. We cannot see how the 3rd Respondent is connected to the injury in question.

12. The upshot of the above is that we do not find merit in the Claimant’s claim and we hereby dismiss it with costs to the Respondents.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 5.2024HON. PAUL AOL MEMBER SIGNED 30. 5.2024Tribunal Clerk JonahKipkurui advocate for the Respondent.Chepkilot advocate for the Claimant- No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024