Kamau v UBESA Sacco Limited [2024] KECPT 1181 (KLR)

Kamau v UBESA Sacco Limited (Tribunal Case 263/E356 of 2023) [2024] KECPT 1181 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1181 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 263/E356 of 2023

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

July 25, 2024

Between

Martin Kamau

Claimant

and

UBESA Sacco Limited

Respondent

Judgment

1. The instant suit was originated through the filing of a Statement of Claim dated 25th April 2023 and filed on 11th May 2023 by the Claimant who sought the following orders:a.Payment of Kshs. 175,000/= being his deposits.b.Costs of the suit and interest until payment is made in full.c.Any other relief so deemed appropriate by the Honourable Tribunal.

2. To support the claim, the Claimant filed a copy of his Withdrawal Letter dated 23. 8.2016, a Copy of Acceptance letter by the Sacco Chairman dated 12. 4.2018, List of Witnesses, Verifying Affidavit and 39 photocopies of savings and loan receipts and 2 receipts of investments made on diverse dates.

3. Summons to enter appearance dated 11th May, 2023 together with the statement of claim dated 25th April, 2023 were serviced upon the chairman of the Respondent Sacco as per the Affidavit of Service dated 23rd May 2023 sworn by Daudi Kipkosgei Suter- a Court Process Server.

4. When the above did not elicit any response within the stipulated period the Claimant made an Application dated 18th July, 2023 and requested for an interlocutory judgment.

5. On 12. 3.2024 the Tribunal entered into an interlocutory judgment in favour of the Claimant for lack of Defence by the Respondent.

6. The claim was stood over for Formal Proof on 13. 6.2024. On the material day, the Claimant stated that he had been following up the Sacco for the refund of his deposits to no avail. He further confirmed that as a result of the failure by the Sacco to adhere to the plan of the payment instalments as contained in their Letter of Acceptance dated 12. 4.2018, he filed a Statement of Claim with the Tribunal and attached all his evidentially documents to proof his claim.

7. This suit has one issue for determination.a.Whether the Claimant is entitled to the orders sought in his Statement of Claim dated 25. 4.2023.

Analysis And Determination Whether the claimant is entitled to an order for refund of his deposits? 8. We note that an interlocutory Judgment was entered on 12. 3.2024 against the Respondent and that there has been no Application from the Respondents to set it aside upto the time of writing this judgment.

9. In the cause, guidance is drawn from Order 10 Rule (4) and (6) of the Civil Procedure Rules (2010) which provide for cases of a liquidated demand like the instant case.The same provisions empower the courts to enter interlocutory judgments in cases where a defendant has failed to file a Defence.

10. Interlocutory judgment because a proper judgment where service of summons was effected but there is no Defence or arguable Defence from the Respondent. in the instant case the Respondents were served physically and virtually through WhatsApp and there is Affidavit of Service on record. But the Respondents have willfully ignored them.

11. Under the circumstances, therefore we proceed to invoke the provisions of Order 10 Rule (4) (2) of the Civil Procedure Rules 2010 which provide as follows:“Where the plaint makes a liquidated demand together with some other claim and the defendant fall or all the defendants fail to appear or aforesaid, the court shall on request in form 13 of appendix A, enter judgment for the liquidated demand and interest thereon as provided by sub-rule (1) but the award of cost shall await judgment upon such other claim.”

12. On the basis of these provisions cited above and the fact that the claimant has established a proper basis to warrant an order for refund of his savings and investments as shown in the photocopies of the receipts, we find that the statement of claim dated 25. 4.2023 has merit.

13. Judgment is entered in favour of the Claimant against the Respondent for Kshs. 175,000/= plus interest and cost until payment is made in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024Tribunal Clerk JemimahNo appearance for RespondentMartin Kamau - ClaimantHON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024