Methodist Savings & Credit Co-operative Society Ltd v Kibera [2023] KECPT 49 (KLR)

Methodist Savings & Credit Co-operative Society Ltd v Kibera (Tribunal Case 302 of 2019) [2023] KECPT 49 (KLR) (16 February 2023) (Ruling)

Neutral citation: [2023] KECPT 49 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 302 of 2019

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

February 16, 2023

Between

Methodist Savings & Credit Co-operative Society Ltd

Claimant

and

Bernard Ndung’u Kibera

Respondent

Ruling

1. Application for determination is dated 9/2/22 which is brought Under Order 22 Rule 48 states;Where the property to be attached is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such purported transfer or charge, and the attachment shall be complete and effective upon registration of a copy of the prohibitory order or inhibition against the title to the property.The Application seeks for orders;a.That, for reasons to be recorded, this application be certified urgent and service thereof be dispensed with in the first instance and the same be heard ex-parte;b.That, this Honourable Tribunal be pleased to issue prohibitory orders against all piece or parcel of land known as Donyo Sabuk/Komarock Block 1/64133 registered in the name of the Respondent/Judgment Debtor.c.That, the Judgment-Debtor be hereby prohibited and restrained until further orders from this Tribunal from transferring or charging the property known as Donyo Sabuk/Komarock Block 1/64133 by sale, or otherwise and all persons be hereby prohibited from receiving the same by purchase, gift or otherwise.d.That, the costs of this application be costs in the cause.And is supported by Affidavit of Patrick Kijunda Muturi sworn on 9/2/22. Which he states a decree was issued on 24/9/19 and Respondent (Judgment-Debtor) has failed to satisfy the decree.They wish for orders to prohibit. Judgement –Debtor from dealing with parcel Donyo Sabuk/Komarock Block 1/64133 registered in his nature.

2. The Respondent filed a Replying Affidavit sworn on 9/3/22 where he states he is indeed the registered owner Donyo Sabuk/Komarock Block 1/64133, however there is a 1st ranking charge in favour of AFC –Via a loan offer letter dated 10/2/21 for Kshs 349,800. 00 Respondents states he is willing to satisfy the decree.

3. The parties were directed to file written submissions and Claimant/Applicant filed their written submissions dated 30/5/22 on 3/6/22.

4. The Respondent as of the date of writing the ruling had not filed their written submissions.

5. Looking into the Application the orders sought and written submissions. We find the issue to be determined is;

Issue One Whether the orders sought can be issued? 6. The Claimant want a prohibitory order against Respondent.

7. Respondent avers the property is charged to AFC and thus cannot be charged to the Claimant/Decree-Holder if at all.

8. The question we ask ourselves is if Applicant has made a case for grant of the orders sought.

9. From the Respondent’s Affidavit the orders sought by Claimant/Applicant’s cannot be granted as there is already a charge in the said title.

10. The title in essence in or 1st priority is to AFCthen the Claimant/Applicant if at all.

11. The Claimant/Applicant’s recourse is in them being 2nd ranking charge in the land Registration Donyo Sabuk/Komarock Block 1/64133 and with permission of the legal charges AFCBank.

Upshot 12. The Application dated 9/2/22 therefore fails with no orders as to costs.

RULING, READ AND DELIVERED VIRTUALLY ON 16TH FEBRUARY, 2023. Hon. Mjeni Mwatsama D/Chairperson Signed 16. 2.2023Gitonga Kamiti Member Signed 16. 2.2023Maria Mbeneka Member Signed 16. 2.2023In the presenceMutuma Advocate for the ClaimantNo Appearance for RespondentJ. Mutai - C/ AssistantSignedHon. Mjeni MwatsamaDeputy Chairperson