Mhasibu Sacco v Waruguru [2025] KECPT 152 (KLR)

Mhasibu Sacco v Waruguru (Tribunal Case 780 of 2019) [2025] KECPT 152 (KLR) (Civ) (30 January 2025) (Ruling)

Neutral citation: [2025] KECPT 152 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 780 of 2019

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

January 30, 2025

Between

Mhasibu Sacco

Claimant

and

Hellen Waruguru

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Motion Application dated 9th April 2024 filed by the Claimant hereinabove seeking for:a.Judgment on admission to be entered against the Respondent.b.Costs to be provided.The Notice of Motion is premised on Order 13 Rule 2 of the Civil Procedure Rules, Section 1A,1B,3A of the Civil Procedure Act, Order 51 Rule 1, 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law.

2. Earlier the Claimant had filed a Statement of Claim dated 16th December 2019 against the Respondent seeking for the following orders:a.Judgment for recovery of Kshs. 2,421,374. 39/= from the Respondent.b.Interest thereon at Tribunal’s rate until payment is made in full.c.Costsd.Any other and further relief that the Tribunal may deem fit to grant.In support of the claim, the Claimant filed a Verifying Affidavit dated 2nd December, 2019 sworn by Judith Achieng, Otieno, List of witnesses dated 16. 12. 2019 and a witness statement dated 2. 12. 2019 together with a List of Documents dated 16. 12. 2019.

3. On receipt of the Tribunal’s summons to appear which was served through the advocate of the Claimant M/s. Murithi Kiberia & Associates the Respondent filed a Memorandum of Appearance dated 27th January, 2020 and chose to act in person.

4. On 13th February, the Claimant filed a Statement of Defence dated the same date together with a list of witnesses, witness statements sworn by the claimant herself dated 13. 2.2020 and finally attached a list of seven (7) documents to back up her Defence.To Respondent prayed for the following orders:a.An updated account for her sister who was her guarantor account for the months after the loan.b.The Claimant be ordered to credit her account and that of her sister with all the interest and bonuses accrued to date.c.The Claimant’s claim be dismissed with costs to the Respondent.

5. After receiving the Respondent’s Statement of Defence and the annexed documents and after attending mentions of the matter in the Tribunal on 18. 3.2021, 27. 7.2021, 21. 9.2021 with no attendance by the Respondent, the Claimant filed a reply to the Defence on 8th September 2021 and annexed a Supplementary List of Documents containing the Respondents member Statement of Account as at 12th August 2021.

6. On the Tribunal’s file records there are several Affidavits of Service dating back to 2019, 2021 and 2024 filed by one Moses Musembi Nzomo , a licensed Court Process Server upon the Respondent which show that the Respondent received statement of claim and the annextures, the notices for mentions and hearing dates and the reply to the Defence together with her member statement account.

7. After missing to attend several mentions dates the Respondent attended to the matter on 3. 10. 2023 and admitted that she was granted the loan . Nevertheless, the Tribunal ordered that a hearing be held on 10. 5.2024. However, the Claimants filed the present Notice of Motion Application dated 9. 4.2024 and stated that since the Respondent admitted in her Statement of Defence dated 13. 2.2020 there is no reason to proceed.

8. It is this application that we set to make a determination.

Analysis 9. We have read through the Statement of Claim and the Respondent’s Defence, the witnesses statements presented by both parties. We have further examined the documents annexed by each party together with the oral evidence on file records.Having considered the above, we find that two issues are for our determination:a.Whether the Respondents made an admission of the claim.b.Who should bear the cost.

Defination of Admission 10. According to Black Law Dictionary the 6th Edition an admission is defined as a voluntary acknowledgement, confession or concession of the existence of a fact or truth of an allegation made by a party to a suit.In Pleadings, the dictionary explained further that the effect of admissions is to narrow the area of facts or allegations required to be proved by evidence.The court provided guidance in the case of Ideal Ceramics Limited versus Suraya Property Group (2017) EKLR that facts can be admitted either on the pleadings filled in court or in any other manner.

11. The Respondent filed her Statement of Defence on 13th February, 2020 and stated under paragraph 3 as follows:“The Respondent denies in toto the contents of paragraph 9 of the claim and avers that upon receipt o the loan. (emphasis ours ) the respondent deposited the said amount as an investment with Goodlife Sacco society Limited also known as Fedtha Micro Investments Limited.”Paragraph 9 of the Claimant’s Statement of Claim state“However, the Respondent immediately thereafter failed, refused and/or neglected to repay the said loan thus owing debt to the claimant society. “A plain interpretation of the Respondent’s statement above, is that she admitted receiving the loan from the claimant and went to invest in Goodlife Sacco society also known as Fedtha Micro Investment Limited.What she denied is the statement that she has failed, refused and neglected to the repay the loan but she did not deny receiving the loan.

12. Further under paragraph 4 of her witness statement dated 13. 2.2020 the Respondent repeated the same averments that she received the loan and invested it elsewhere.

13. On this it is our finding that the Respondent made an obvious and express admission that she received the loan from the Claimant. Equally her member statement account shows that the approved loan was credited to her account on 4. 5.2015. In a decision of the court in Herta Elizabeth Charlotee Nazari (1984 EKLR) case, Madan J.A(as he then was) stated on admissions that :“Admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying a lass to ascertain their meaning. “

14. While still on acknowledgment of the loan the Respondent under paragraph 12 of her Statement of Defence state that “she is currently unemployed and shall seek leave of the court after audited books of accounts are availed to her to pay the loan balance by monthly instalments (emphasis ours).This is a clear indication that she does not deny the fact she was granted the loan. By her admission of intention to pay the balance by monthly instalments leaves no room for doubt in her admission.Order 13 Rule 1 of the Civil Procedure Rules speak to this kind of admissions by providing that:“Any party to a suit may give notice by his pleadings or otherwise in writing that he admits the truth of the whole or part of the case of any other party.”The admission by the Respondent in the statement of Defence in reinforced more by the Respondent herself under paragraph 2 and 3 of her witness statements where she stated that:“Paragraph 2 – it is true that I made a loan application with the claimant of Kshs. 2,541,952/= to be paid in 48 monthly instalment. She went further to state under paragraph 3 thatParagraph 3- I had previously taken loans with the Claimant and settled the same.”

15. Having found out that the admission is clear and leave no doubt, we note that the Respondent under paragraph 8 has blamed the claimant for not taking into account her deposit of Kshs.763,979. 80/= and under paragraph 10 she stated that a credit of Kshs. 120,000/= was not taken into account in her loan member statement.

16. We have taken time to peruse through the two (2) member statement account filed by the claimant and the Respondent and confirm that both statements carry the same details.On the Kshs. 763,979. 80/= that the Respondent claim that it is not reflected in the account, we noted that on 30. 7.2015 the claimant debited her deposit account with Kshs. 215,750/= to clear her previous loan as she had earlier stated under paragraph 3 of her witness statement.After this, her deposit account was further debited with Kshs. 5000/= on 8. 9.2015 which was transferred to her share capital account and another debit of Kshs. 1,200/= on 31. 12. 2015 which was transferred to insurance fund.This left a balance of Kshs. 542,029. 20/= in her deposit which amount was debited in her loan account on 29. 02. 2016 and reduced the outstanding loan to Kshs. 2,135,924. 35/= from Kshs. 2,677,953. 01/=

17. Regarding the Kshs. 120,000/= stated under paragraph 10 and the Respondent’s sister’s (guarantor) deposit of Kshs. 165,095/=, a scrutiny of the member’s statement shows clearly that the amount of Kshs. 120,000/= was clearly posted in the member statement account on 10. 7.2015 to reduce the outstanding loan amounts.

18. Regarding the deposit of the Respondent’s sister who was her guarantor, the sister whose witness statement is marked as DW2- Joyce Wanjiru and filed on 13. 2.2020 stated that she guaranteed the Respondent to the tune of Kshs. 156,221/= which amount is indicated in the Respondent’s loan application form dated 2. 4.2015. Therefore, the amount alleged by the Respondent to have been guaranteed by M/s Joyce Wanjiru (guarantor) of Kshs. 165,095/= is not true.

19. On 7. 1.2017 using the amounts indicated by each guarantor in the Loan Application Form to guarantee the Respondent, the Claimants recovered the amounts from guarantors.

20. On the second issue of costs, it is trite law under section 27 of the Civil Procedure Act that costs shall follow the event unless the court or judge shall for good reason otherwise order.In the instant case and using the Tribunal discretion, it is our considered opinion that each party to meet his/her own costs.

Conclusion 21. Having analyzed and examined the evidence on record we find that the claimant’s Notice of Motion Application dated 9. 4.2024 has merit and thus allow it.Orders1. The Notice of Motion Application dated 9. 4.2024 is merited and therefore allowed. Judgment is entered in favour of Claimant against Respondent for Kshs. 2,421,374. 39/=.2. Each party to bear his/her costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE - MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI - MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 1.2025HON. PAUL AOL - MEMBER SIGNED 30. 1.2025Tribunal Clerk MutaiMs. Ireri advocate holding brief for Mr. Mureithi advocate for the ClaimantHellen Waruguru- No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 1.2025