Equity Bank Savings & Cooperative Society Limited v Kamau [2023] KECPT 428 (KLR)

Equity Bank Savings & Cooperative Society Limited v Kamau (Tribunal Case 906 of 2018) [2023] KECPT 428 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 428 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 906 of 2018

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

April 27, 2023

Between

Equity Bank Savings & Cooperative Society Limited

Claimant

and

Waweru Thomas Kamau

Respondent

Ruling

1. What is coming up for Ruling is Notice to Show Cause dated February 11, 2021.

2. The Claimant filed a Statement of Claim dated November 15, 2018. In the Statement of Claim, the Claimant claims that the Respondent defaulted on his loan repayment which amounted to Kshs. 59,413/=.

3. In default of the Respondent entering an appearance and filing a Statement of Defence, the Claimants requested for judgment in default via an application dated July 25, 2019. This was accompanied by a duly filed Affidavit of Service indicating that the Respondent has been duly served with the summons.

4. A summary judgment was entered by the Tribunal on September 19, 2019 against the Respondent for the sum of Kshs. 59,413/= together with costs and interest. The decree was extracted and served on the Respondent together with the Notice to Show Cause dated February 11, 2021.

5. The Respondent filed a Replying Affidavit dated 26th July 2021 and filed on July 27, 2021. In his Replying Affidavit, the Respondent does not dispute that he was a member of the Sacco, or that he took a loan with the Claimant Sacco. However, he claims that when he left employment in 2009, he directed the Claimant to balance his Sacco shares with his loan balance. He then claims that he did not hear from the Sacco since then, until when he was served with the Notice to Show Cause application herein. The Respondent contends that he was never served with the summons to enter an appearance by the Claimant.

6. In their submissions, the Claimants reiterate the claims in the Statement of Claim. They maintain that the Respondent was properly served and that the judgment in default was properly entered.

7. In their submissions, the Respondent reiterates the contents of his Replying Affidavit and prays that the court sets aside the judgment in default and allows the case to proceed so that the Respondent can be accorded a fair hearing.

8. The Tribunal has considered all the above facts. The Respondent denies being served with the summons to enter an appearance while the Claimants have duly filed an Affidavit of Service. The Respondent does not deny that he had a loan with the Claimant, however, claims that if the Claimant had offset his deposits with his pending loan in 2009, it would have balanced off and that the delay in offsetting the loan with the deposit, led to the balance herein due to the interest accrued. The Respondent did not attach a copy of the letter sent to the Sacco. A loan is an individual responsibility, and it was the onus of the Respondent to follow up with his Sacco to ensure that his deposits have been used to set off his loan. When one is taking a loan, the terms are that the same be repaid and a set off from the deposits is done is special circumstances and through express instructions by the loanee or as a recourse when the loan repayment is in default. As much as we feel that the Claimant should have notified the Respondent of his default, we also feel that if the Respondent was serious enough he would have tried to find out if his accounts were settled, almost 10 years down the line.

9. In the upshot of the foregoing, the Notice to Show Cause dated February 11, 2021 is upheld, and order warrant of arrest to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by partiesRuling delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023