Gikonyo v Amica Savings & Credit Co-operative Society & another [2025] KECPT 204 (KLR)

Gikonyo v Amica Savings & Credit Co-operative Society & another (Tribunal Case 37/E048 of 2022) [2025] KECPT 204 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 204 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 37/E048 of 2022

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya & P. Gichuki, Members

February 27, 2025

Between

Peter King'aya Gikonyo

Claimant

and

Amica Savings & Credit Co-operative Society & another

Respondent

Judgment

1. Matter for determination is statement of claim dated 8th February, 2022 filed on even date. The Claimant avers he is a member of the 1st Respondent and was an employee of Amica Savings& Credit forming Murata Sacco.Claimant took a loan with 1st Respondent and in token he was advanced 3 loans and a security was given as LOC 14/Kamune/1551 which Claimant avers was for the 1st 2 loans (states 1st respondent has threatened to sell by public auction without issuing the requisite notices: -The Claimants prays for :1. A decree be issued directing the 1st Respondent to prepare and/or render to the applicant a true proper and accurate account of all the financial dealings conducted in the applicant’s loan accounts.2. A declaration be issued that the statutory notice issued to the plaintiff/applicant by the defendant/respondent was a nullity for being defective for failure to detail the amount that the plaintiff/applicant must pay to rectify the default as required by section 90 (2) (b) of the land act number 6 of 2012. 3.A decree be issued that all that land described as LOC14/KAMUNE/1551 be valued by an independent valuer to ascertain its current market value.4. cost and interest5. Any other relief that the honorable tribunal may award.Claimant filed witness statement dated 8th February, 2022 and list of documents dated 8th February, 2022a.Bank receipts for the loan account with Amica Savings and creditb.Notices of intention to sell LOC14/Kamune/1551. c.Any other document the applicant may adduce during trial.

2. The Respondent filed statement of defence dated 2nd June, 2022. Respondent denied the document of the statement of claim. Respondent avers the 3 loans taken by Claimant were consolidated and a legal charge registered against Land parcel No. LOC 14/Kamune/1551. Respondent further avers the Claimant severally defaults in repaying the loan and several notices sent dated 10/1/19, 15/9/21, 13/10/21, 18/5/21 and 19/4/21. The Respondent states the Claimant has no cause of action and the claim is scandalous, frivolous, vexation and an abuse of the court process.Respondent filed list of documents dated 2/6/2022 filed on 7/6/2022 to which includeda.Statement of account – 18. 2.2021b.Letter – 15. 9.2021c.Letter – 13. 10. 2021d.Letter – 18. 5.2021e.Letter – 19. 4. 2021f.Letter – 10. 1.2019g.Letter to authority- 2. 6.2022h.Another documents with leave of court and a further list of documents dated 29/5/23 which includei.Statement of account- 20. 5.2023j.Loan application form- 2. 5.2018k.Charge – 27. 7.2016l.Official search – 28. 7.2016m.Official search – 23. 9.2015n.Charge – 23. 9.2015o.Any other document with leave of court.1. Matter proceeded for hearing on 22/11/2023 with the Claimant’s case Claimant Peter Kiya’anya Gikonyo gave his evidence by adopting his witness statement dated 8/2/2022. He produced his list of documents dated 8/2/2022 as his evidence marked exh. 1 and 2. His payment to get this loan account statement. On cross-examination, he confirms he was advanced 3 loans however did not have proof of security the loan. He confirmed he recovered letter dated 10/1/2019 demanding for loan arrears.Further, when tasked about (Ex 2- what had been indicated in the encumbrance section he confirms the title was changed to Murate Sacco on September 2015. On classification by Tribunal members the Claimant confirmed he owned the Respondent slightly above 2 million. He further confirmed his last payment was in November, 2019.

4. Respondent case was heard on 6/8/2019 PW1 Robert Mbau Wairimu testified on behalf of 1st Respondent. he is the head of credit. PW1- adopted his witness statement dated 2/6/2022 as his evidence in chief and produced his list of documents dated 2/6/2022 and further list of documents dated 29/5/2023 which were marked R Ex 1-7 and R Ex 8-13 respectively. He confirmed they advanced a loan of Kshs.2,000,000/= in May, 2018 and he gave security for the same. 6 years down the road he had not paid. On cross-examination RW1 confirmed the Claimant owned Respondent Kshs, 3,810,876. 43/= and I had only paid Kshs 1,013,536. 53/=. RW1 further confirmed as per tribunal order dated 9/2/2022. They had not complied i.e. by filing accounts. He confirmed the claimant was given demand notices and he even attended the Respondent’s board committee meeting and gave promises to pay.

5. The parties were to file witness submissions. Claimant filed witness submissions and Respondent witness submission filed witness submissions. Having looked into the pleadings, the evidence produced and witness submissions and the issues to be addressed.Issue No. 1. Whether the Claimant is withheld to get loan account statement?Issue No.2. Whether land LOC 14/Kamune/1551 was used as security.

6. Issued oneWhether the Claimant is entitled to get loan account statement?It is not in dispute that the claimant was advanced a loan of 2 million and the Claimant defaulted. As such the defaulted loan accrued interest and Respondent made a demand for the same. The Claimant confirmed he still owned the Respondent about Kshs.2,000,000/=. Thus, the question whether the Claimant is entitled to loan account statement as one of his prayers int eh statement of claim. In order to repay the loan and to have the status it is important for a loan account statement to be issued. We thus order the Respondent to issue Claimant with a loan statement.Issue two:Whether land Loc 14/Kamune/1551 was used as security?This security Loc 14/Kamune/1551 was given to the Respondent as security as confirmed by Claimant from evidence adduced the property is legally charged for the loan advanced to the Claimant. The said security is and can be sold at the default of the claimant.

7. Issue three.Whether notices were issued to the Claimant by Respondent? However, Respondent in its evidence gave evidence tot eh contrary that the Claimant was served with the relevant statutory noticed dated 10/1/19, 15/9/21, 13/10/21, 18/5/21 and 19/4/21. The Claimant on cross-examination confirmed she got the notice of intention to sell dated 11/1/2022. With the above it can not be said.

8. As such we find that Claimant is in default of the loan advanced and the security, he offered can be used to pay the default amount. The Claimant’s prayed as they are where final in favour of Claimant agents Respondent for:1. 1st Respondent to render a true and proper accurate account of Claimant. The 1st Respondent to issue a LOAS 14 days from date of Judgment.2. Prayer No. 2- fails3. Land known as LoC 14/Kamune/1551 be valued to ascertain current value 30 days from date of judgmentEach party to bear their own costsMention for further directions 10/4/25 Notice to issue.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. Hon. B. Kimemia - Chairperson Signed 27. 2.2025Hon. J. Mwatsama - Deputy Chairperson Signed 27. 2.2025Hon. Beatrice Sawe - Member Signed 27. 2.2025Hon. Fridah Lotuiya - Member Signed 27. 2.2025Hon. Philip Gichuki - Member Signed 27. 2.2025Tribunal Clerk J.MutaiNo appearance by the parties.Hon. B. Kimemia - Chairperson Signed 27. 2.2025