Jachin Sacco Limited v Githinji [2023] KECPT 778 (KLR)

Jachin Sacco Limited v Githinji (Tribunal Case 493 of 2020) [2023] KECPT 778 (KLR) (28 September 2023) (Judgment)

Neutral citation: [2023] KECPT 778 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 493 of 2020

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

September 28, 2023

Between

Jachin Sacco Limited

Claimant

and

Joshua Maina Githinji

Respondent

Judgment

The Claimant’s Case 1. The Claimant filed a Statement of Claimant dated 13th November, 2020 on 10. 12. 2023 and sought for the following orders:a.That an order be made against the Respondent for the repayment of Kshs. 2,529,454/=.b.That interest on (a) above be provided from the date of judgment until payment is made in full.c.Costs of the suit and interest on cost.

2. This Claimant’s claim is supported by Witness Statement of Mr. Kagutha Mwangi, his Verifying Affidavit, Members Loan Application form marked Agreement I and Agreement 2, the Claimant’s Demand Letters and the Respondents Letter of Response dated 20th April 2016.

3. The claimant avers the Respondent is/was a member of the Claimant Sacco where he made deposits in his account.

4. Through a member’s Loan Application dated 12. 12. 2012, the Respondent applied for a Development Loan of Kshs. 3,000,000/= which was payable within thirty-six (36) months at a rate of 1% per month on reducing balance. This loan was disbursed by the Claimant to the Respondent via cheque number 000710 dated 8th February 2013.

5. A copy of the Statement of the Loan Repayment Account show that a last repayment of Kshs. 300,000/= was posted on 31st September 2015.

6. On 20th January, 2015, the Respondent through a member’s loan application form applied for another loan of Kshs. 1,000,000/= repayable within twelve (12) months at an interest of 1%on reducing balance.

7. A cheque number 001130 dated 4th February 2015 was drawn in favour of the Respondent and given to him.

8. From the copy of the Respondents statement of loan repayment account, it is evident that there was no posting of any repayment amount on this second loan from the time of disbursement in March 2015 to the date of the statement which is April 2022.

Respondent’s Case 9. The Respondent filed a Statement of Defence dated 10th June 2021 on 17th June 2021 and denied all the averments made by the Claimant.

10. On the repayment of the loan, the Respondent stated at paragraph 5 of the Statement of Defence that “ he faithfully repaid his loan and the outstanding balance owing as at August 2017 was agreed between himself and the Claimant that it was to be offset by his savings and the annual dividends payable to him by the Claimant for over seven (7) years. He therefore denied that he owed the Respondent any outstanding loan.

Tribunal Orders During Pre- Trial DirectionS 11. The Tribunal issued a notice for the mention of the case on 5th April 2022 whereby both advocates of the parties were ordered as follows:a.The Claimant was granted leave to file Supplementary Statement of Account within 30 days.b.The Respondent was granted 30 days to file and serve their written statements and other documents.

12. The Tribunal thereafter ordered that the parties shall be required to proceed to the close of their cases on the next hearing date which was set to commence on 2nd May 2023.

13. On the date of hearing that is 10th July 2023, the Respondent failed to log -in and the Tribunal ordered that the hearing should proceed with one witness who was the Chief Executive Officer of the Claimant Sacco.

14. It was the testimony of the Chief Executive Officer that the Respondent made repayment of his loans inconsistently since 2017 despite several reminders.

15. To satisfy part of the repayment of the loan the witness stated that the Sacco attached the Respondents savings which was Kshs. 1,807,500/= and used it to offset what was the outstanding loan from the 1st loan agreement and left a balance of Kshs. 787,951/= outstanding.

16. He stated that the Respondent never repaid any amount on the 2nd loan of Kshs.1,000,000/= and that the total outstanding amount that he owed the Sacco on that loan account is Kshs. 2,787,951/= which continue to attract interest at 1% per month.

17. The Claimant’s witness prayed the tribunal to allow them to attach the debtor for the recovery of the total outstanding loan.

18. At the end of the Claimant’s case, the Counsel for the Claimant’s request for judgment to be entered against the Respondent’s because their absence to defend the case could be construed as an admission of the claim. The Defence case was ordered as closed.

19. The claimant opted not to file written submissions as such matter is for determination.

Issue For Determination 20. The only issue that we have on the table for determination is:

i. Whether the Tribunal can enter judgment against the Respondent? 21. Having considered the Statement of Claim, the Witness Statements, Verifying Affidavits the Affidavit of Service and all the annextures filed by the Claimants and having considered the Statement of Defence and the failure of the Respondent to attend the hearing. We are of the view that the Respondents may not have any Proof of Defence.

22. To guide us to make a determination under the circumstances, we exercise our minds to the provisions of Order 12 Rule 2 (a) which provide as follows:“if on the day fixed for hearing after the suit has been called on the hearing dated outside the court only the Plaintiff attend, if the court is satisfied,a.That notice of hearing was dully served it may proceed exparte”.

23. The Tribunal granted a lot of latitude to the Respondent to defend the suit but instead it filed a Statement of Defence with no evidential proof of payment on 17th June 2021 and even failed to respond to the Supplementary Statement of Account which was ordered by the Tribunal on 5th April 2022.

24. The Respondent and his counsel on record failed to attend or log-in during all the mentions that were ordered by the Tribunal despite being served with the notices.

25. With a lot of restraint the only option that was available to the Tribunal in the present case is to allow the Claimant to proceed and prosecute its case upto the end in the same way that the Tribunal would have allowed the respondent to apply for dismissal of a case when a Claimant fails to take steps to prosecute his matter.

26. This principle was well captured in the case of Josphat Oginda Sasia versus Wycliffe Wabwile Kiiya(2022) eKLR in which the court held that:“But as has been held time and again before, all the court needs to do when a party does not take steps to prosecute his matter is for it to give notice of the intent to dismiss the matter.”

27. In the instant case, it is clear from the issued and served summons to appear and the Notices for mentions and hearings that the Tribunal exhausted most of the avenues to convince the Respondent to attend the hearing and defend the case. The mere fact that the Respondent filed a Defence does not warrant the document to become part of the judicial record. On this note the Tribunal is guided by the decision in the case of Kenneth Nyaga Mwige and Austin Kiguta and 2 others (2015) eKLR where the court of Appeal Judges stated thus:“…when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of a case and constitutes evidence….”

28. The Respondents never attended the hearings scheduled by the Tribunal to adopt his Witness Statement and adduce evidence.

29. Having refused, declined or neglected to defend the claim, the Tribunal is left with no other alternative but to look into the claimant’s case and having considered the Claimant’s claim and Statement of Defence by Respondent despite the absence, we are convinced the claimant has on a balance of probabilities proved their case.

30. The Claimant’s claim dated 13th November, 2020 is found to be with merit. We enter judgment in favour of claimant against Respondent for Kshs. 2,529,454/=.

31. Plus costs and interest in the claim..

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 28. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 28. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 28. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 28. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 28. 9.2023HON. PAUL AOL MEMBER SIGNED 28. 9.2023Tribunal Clerk JemimahMs. Mulei for Claimant.No appearance for RespondentHon. Beatrice Kimemia Chairperson Signed 28. 9.2023