Kazi Bidii Sacco Society Ltd v Kitavi [2023] KECPT 758 (KLR)

Kazi Bidii Sacco Society Ltd v Kitavi (Cause 508 of 2020) [2023] KECPT 758 (KLR) (28 September 2023) (Judgment)

Neutral citation: [2023] KECPT 758 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Cause 508 of 2020

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

September 28, 2023

Between

Kazi Bidii Sacco Society Ltd

Claimant

and

Benard Muasya Kitavi

Respondent

Judgment

1. The Claimant states that the Respondent was loaned Kshs 850,000/=, on 18. 03. 2017 repayable in 36 months at 1. 35 interest.

2. The Claimant avers that the Respondent defaulted compelling the Claimant to offset the Respondent deposits of Kshs 251,000/= with the loan leaving a balance of Kshs.350,656/= being loan balance and interest.

3. In the statement of claim the Claimant states that the Respondent had on 30. 1.2019 acknowledged being indebted to the Claimant and had promised to liquidate the debt

4. On February 3, 2020 the Respondent had again committed to repay the outstanding loan but did not honor his promise.

5. During court proceeding Claimant’s 1st witness Mr. Robert Musyoka who is the Chairman Cooperative averred that the Respondent was a member of the Claimant.

6. He clarified that the Claimant was formally known as Malgow Sacco but later changed to the current name of Kazi Bidii Sacco

7. Claimant 2nd witness Mr. Peter Kioko who is the Claimant’s Treasurer submitted that he has filed documents in court to prove the Respondent membership and indebtedness to the Claimant. Among the documents filed are Respondent loan statement as at 31. 7.2020, demand letter dated 12. 10. 2020, loan application form and the Respondent’s pay slip.

8. The three Claimants’ witnesses in their separate statement alluded to the fact that the Respondent was indeed a member of the Claimant’s Sacco and that he was granted a loan which he defaulted leaving a balance of Kshs 356,656/= .

9. The witness statement also confirm that the Claimant Sacco was originally Malgow Sacco .

10. The statements also confirm the offsetting of the Respondent loan with his deposits.

11. The three Claimant witnesses stated that the Respondent guarantors for his loan denied over guaranteeing Respondent Loan citing forgery of their signaturesThe Claimant prays for judgment against the Respondent for;

12. a)The sum of kshs.350, 656/= with interest thereon at 20% per annum from 18th March 2017 until payment in full.b)Cost of this claim.

Respondent Case 14. The Respondent case is contained in the Respondent Statement of Defense dated 2nd February, 2021. In his Defence, the Respondent denies being a member of the Claimant Sacco. He also denies receiving any loan from the Claimant.He denies authorizing the Claimant to offset his deposit.

15. He also denies ever acknowledging owing the Claimant any Loan and that the alleged forgery of guarantor’s signature is not true.

16. The Respondent did not file a witness statement nor did he appear in court during the hearing of the case 21. 7.2022.

Analysis of the case 17. The Claimant has proved beyond reasonable doubt that indeed the Respondent was granted Kshs.850,000/=. Loan Agreement, Respondent loan statement and pay slip were produced to prove the existence and status of the loanThe three Claimant’s witness namely;1. Robert Musyoka2. Peter Kivelenge3. Joseph Muthuku

18. Through their Respondent Witness Statements, they adduced their evidences proving that the Respondent was a member of the client and was granted a loan which he defaulted.

19. As regards the Respondent the only document in Defence of the case is the Respondent Statement of Defence.

20. There is no evidence that there was a Respondent witness statement. Despite a Hearing Notice filed on 5. 5.2022, Respondent failed to attend the hearing on 21/7/2022.

21. The Respondent did not appear in court during the hearing to defend himself.There is no evidence of any written submissions by the Respondent.

22. It is therefore a fact that the Respondent did not defend his case apart from the Statement of Defence which in our opinion was a mere denial to the Claimant Statement of Claim.

Conclusion 23. We find that, in the absence of any evidence by the Respondent, the Claimant has proved the claim on a balance of probabilities and we therefore enter judgment for:a)Kshs 350,656 with interest of 1. 35%per month (16. 1%) per year from the date of filing 23. 12. 2020 until the payment is made in full.b)Cost of this suit are awarded to the Claimant.

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 JemimahJudgment delivered in the absence of the parties.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023