Justus Ntabo Gekone v Embassava Sacco [2021] KECPT 496 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.30 OF 2016

JUSTUS NTABO GEKONE............................................................CLAIMANT

VERSUS

EMBASSAVA SACCO............................................................. RESPONDENT

JUDGMENT

1. The claim herein is dated 1st February 2016, and filed in court on 3rd February, 2016. The Claimant  being a member  of the Respondent – Embassava  Sacco  Society  Kenya took  a loan which while making payments the Respondent who were  managing the said  motor vehicle  misappropriated  the funds  and frustrating him  in operation  of  his  motor vehicle.   The Claimant  now seeks for :-

a.A refund  of Kshs.1,838,608

b.A permanent  injunction  order restraining  Embassava  Sacco officials  from  harassing  the Claimant’s workers and accord  the Claimant  equal rights  to  enjoy  the services  of the Respondent.

c.Costs of the suit.

d.Any other reliefs this Honourable court may deem fit and expedite to grant.

2. The Respondents on their end filed a defence dated  4th March, 2016 and filed on 7th March, 2016. Respondent further amended their Defence and filed an Amended defence and counterclaim dated 8th September, 2017. The  Respondent  counter claim  prayers  were for:

a. Kshs.1,665,534. 60/=

b. Costs

c. Interests on (a) and (b) above

d. Any other relief this Honourable court may deem just and proper to grant.

They denied  the Claimant’s claim  of frustrations  in operating  his motor vehicle  KBS  246V and  misappropriation  of funds  and further  denies  owing the Claimant Kshs.1,838,608/= as claimed.

3. CLAIMANT’S CASE  AND EVIDENCE

Claimant testified on 3. 7.2019 and adopted his witness statement filed on9. 4.2018 as his evidence- in- chief. He stated he applied for a loan of Kshs.3. 3Million as a member of Respondent Sacco. He had savings of Kshs.1. 1.Million and thus qualified for a loan that was 3 times his shares.

He testified  only Kshs.2. 2.Million  was  approved and what was dispatched  to him  was Kshs.1,169,072/= and the other  Kshs.1,030,928/- was withheld  for unknown  reasons.

4. The Respondents started deducting the installments based of the Kshs.2. 2.milliion that had been approved.  He complained to the management with no results and later at the Annual General Meeting.  He later came to learn that his shares were repossessed and told his motor vehicle had accumulated debt from poor performance.

5. The tabulation done by the Respondents gave no receipts for the expenditures. The Claimant Further  claimed  some  expenses  by the Respondent  for his  account were  unaccounted  for:

1. Kshs.436,946/- was  not remitted

2. Kshs.1, 138,090/- unsupported expenses for the period of October 2012 to December 2012.

3. Kshs. 1,303,055/- unsupported expenses for the period of March 2013 to June 2013.

The Claimant’s  claim is for  Kshs.2,868,792. 50/=  as per  the  witness statement and  acknowledged  if  there is  any  money owing  to  the Respondent it is the  school  fees loan he had  taken.  He  was not to pay  any money  to Respondent  because  the motor vehicle  was being  managed  by Respondent  and it was generating  income  to pay the loan.

6. RESPONDENT’S CASE  AND EVIDENCE

Respondent  gave evidence  on  2. 9.2020 and one James  Kabue  the Accountant  of Respondent  adopted  his witness statement  dated  20th April,2018 and  filed  on  8th May,2018 as evidence-  in -chief.

In his evidence he stated Claimant took 3 loans-

(i)  For purchase of motor vehicle KBS 246V bought and Sacco was a guarantor..

(ii) School  fees loan  Kshs.120,000/=

(iii) Disputed  loan  of Kshs.3. 3.Million

He stated the Claimant demanded to be given the motor vehicle the Respondent had guaranteed before the 36months repayment period was over. We furnished him with monthly reports of the motor vehicle and asked him to clear the loan first.

The loan balance  of  Kshs.1,030,000/- (deficit) was used to  pay  balance of motor vehicle  KBS 246V  and it was  paid to Equity  Bank.

All his savings were transferred to the loan and he contributed Kshs.40, 000/= cash against the loan.

7. The counterclaim  is for Kshs.1,665,534. 60/= as at March  2015, the Claimant  took over   the  Management of the motor vehicle, however before  this time he  had hired  his  own crew  who were  accountable  to him.  As at March, 2015 the loan balance was Kshs.662, 000/=.

8. ISSUES  TO BE DETERMINED

1. How much loan was advanced to Claimant by Respondent in total?

2. How much was paid by claimant?

3. Was the Kshs.1. 030,928/= not remitted to Claimant as loan accounted for?

4. Is the prayer  for  permanent  injunction  restraining  the Respondents  officials  from harassing  the claimant’s  workers and  accord  the claimant equal  rights  to enjoy  the services  of the Respondent?

5. Is the counter claim of Kshs.1,665,534. 60/= proved?

9. ISSUE 1. HOW MUCH LOAN WAS ADVANCED?

From the evidence adduced the money advanced to the Claimant is Kshs.1, 169,072/=.

No sufficient  reason  is  given by Respondents  for  not remitting  the entire loan as advanced to the Claimant of Kshs.2,200,000/=.

ISSUE 2:  HOW MUCH WAS PAID BY CLAIMANT?

The Claimant received Kshs.2, 200,000/= from the Respondent.

ISSUE 3: WAS THE KSHS.1. 030. 928/= NOT REMITTED TO CLAIMANT AS LOAN ACCOUNTED FOR?

We take note of the  fact that  the balance  of the loan  approved  Kshs.1. 030,918/= was used  to pay  off the loan  balance of  motor vehicle  KBS  246 V when the  claimant  withdrew  the vehicle  from management of  the Respondent.

ISSUE 4:  PRAYER FOR PERMANENT INJUNCTION

A permanent  injunction  is a final  order of a court  that a person  or  entity  refrain  from  certain activities permanently  or  take  certain  actions (usually  to  correct  a nuisance) until  completed.

Generally an injunction is sought in addition to other remedies.

In Nguruman Limited – vs-  Jan Bonde  Nielsen & 2 others, CA NO.77 of 2012;[2014] eKLR the Court of Appeal  reiterated  the conditions  to be met  by a litigant  who seeks  injunctive  relief  as follows:

“An Interlocutory Injunction Application, the Applicant has to satisfy the triple requirements to;

a. Establish his case  only at a prima facie level,

b. Demonstrate  irreparable  injury  if a temporary  injunction  is not granted; and

c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.....”

These are the 3 pillars on which rest the foundation of any Order of injunction, interlocutory or permanent. It is  established  that all the above  3 conditions  and stages  are to be applied s  separate, distinct and  logical hurdles  which  the Applicant  is  expected to summon sequentially.....

In the case of LucyWangui Gachara – vs-  .....Okembe Lore [2015] eKLR.

“...the court  will not grant  a mandatory  injunction  if the  damage  feared  by the plaintiff  is trivial,  or where  the  detriment  that the mandatory  injunction  would  inflict  is disproportionate  to the  benefit it  would”

In the case at hand can the Claimant  be said  to  have established  a prima facie  case, having  demonstrated  the  likelihood  of irreparable  damage  that is  loss of income   that  has warranted  the grant  of the injunctive  order.

The  Claimant  having  removed  his motor vehicle  from the Respondent’s  management,  would he still be eligible  for  this remedy  of permanent  injunction?

In light of the above Claimant to safeguard his livelihood requires protection by court.

10. UPSHOT

After analysis of the evidence by both Claimant and Respondent we find the following:-

(i) A refund of Kshs.1,838,608/=  is not proved however,  the Claimant is entitled  to Kshs.662,000/= amount  he  paid  to clear  loan balance.

(ii) A Permanent injunction  Order is granted restraining  Embassava Sacco  officials  from  harassing  the Claimant’s  workers and  operations  of the  Claimant’s  motor vehicle.

(iii) The Counter claim of Kshs. 1,665,534/= fails however, Respondent can follow up on the school fees loan and refund of Insurance money Kshs.89,587. 80/=.

(iv) Each party to bear their own costs.

Judgment signed, dated and delivered virtually this 30thday of March, 2021.

Hon. B. Kimemia   Chairperson   Signed  30. 3.2021

Hon. J. Mwatsama  Deputy Chairperson Signed  30. 3.2021

B. Akusala     Member   Signed  30. 3.2021

Mwema holding brief for Marare for Claimant

No appearance for the Respondent.

Hon. J. Mwatsama  Deputy Chairperson Signed  30. 3.2021