Nderi & 2 others v Gichohi [2023] KECPT 926 (KLR)

Nderi & 2 others v Gichohi (Tribunal Case E232 of 2022) [2023] KECPT 926 (KLR) (3 August 2023) (Ruling)

Neutral citation: [2023] KECPT 926 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E232 of 2022

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

August 3, 2023

Between

Fredrick Kimani Nderi

1st Claimant

Eliud Mwariri Hunja

2nd Claimant

Purity Muthoni Githinji

3rd Claimant

and

Jane Wanjiru Gichohi

Respondent

Ruling

1. This ruling dispenses with the claimants notice of motion application dated March 17, 2022 supported by an affidavit sworn by the claimants, Fredrick Kimani, Eliud Mwariri Hunja and Purity Muthoni Githinji, and brought under order 39 rule 5 of the Civil Procedure Rules and all enabling provisions of the law. The application seeks the following orders:1. That the application be certified as urgent and its service upon the respondent be dispensed with in the first instance.2. That pending the hearing and determination of this application or further orders of the court, prohibitory order be registered against the registers for L.R.Laikipia/Marmanet/1276&1277 [Extension].3. That the respondent do show cause why he should not furnish security to be determined by the Tribunal in the instant suit, and in default LR.Laikipia/Marmanet/1276 &1277[Extension] be attached pending the hearing and determination of the suit.4. That the costs of this Application be paid by the Respondent.

2. The application is premised on the grounds on its face which are inter alia that: The respondent and the applicants were all members of the same Sacco. The respondent took a loan of Kshs. 1,410,000/- with the Claimants as guarantors. The respondent defaulted and the Sacco recovered the loan from the claimants. The claimants now want the court to allow them to attach respondent’s land L.R Laikipia/Marmanet/1276 &1277 (Extension) in respect of their shares that were deducted.

3. In response, the respondent filed a replying affidavit sworn by herself. In her response, the Respondent avers that the land does not belong to her and the search is not genuine. The respondent also avers that she is willing to pay the loan and only that she was experiencing financial difficulties.

4. Both parties filed written submissions on the matter. The claimants/applicants submissions reiterate the prayers in their application. The applicants rely on order 39 rule 5,6 & 7 of the Civil Procedure Rules 2010, which provides that; -“(1)Where at any stage of a suit the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him-(a)is about to dispose of the whole or any part of his property; or(b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.(2)The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.(3)The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.”The applicants submit that their application falls under the ambit of the above section of the law because the respondents own the subject property and the respondent has no known place of residence, and no other known assets. The respondent also prays that the respondent should furnish security pending the determination of the main suit.

5. In their submissions, the respondents submit that the claimants have not shown that the respondent intends to avoid the process of the Tribunal, by obstructing or delaying the execution of any degree. They further submit that there is no evidence that the Respondent is about to abscond or leave the local jurisdiction. They rely on various case laws.

6. The Tribunal has considered the submissions of both the Claimant and the Respondents. The Tribunal finds that it is not disputed that both the Claimants and the Respondents were members of the same Sacco and that the Respondent took a loan guaranteed by the Claimants. The Respondent in her Replying Affidavit does not deny that she took a loan that was guaranteed by the Claimants. The Respondent claims that she went through financial difficulties and that she is still willing to pay the loans. The Tribunal has sought the principles governing the attachment before judgment laid down in the case of Kuria Kanyoko T/a Amigos Bar And Restaurant v Francis Kinuthia Nderu, Helen Njeru Nderuand Andrew Kinuthia Nderu (1988) 2 KAR, 1287-1334, when the Court of Appeal reiterated as follows:-“The power to attach before a judgment must not be exercised lightly and only upon clear proof of the mischief aimed at by Order 38, r 5, namely that the defendant was about to dispose of his property or to remove it from the jurisdiction with intent to obstruct or delay any decree that may be passed against him.”The question we ask ourselves is if the applicant has made a case for a grant of the orders sought. The Tribunal notes that the claimant’s only fear is that the Respondent has no known physical address or any other known property. The Tribunal finds that the claimants have not shown that the Respondent is planning to dispose of the property or do any other action aimed at defeating the judgment that may be entered. The Tribunal finds that the claimants have also not shown enough reason why the Respondent should be ordered to supply security for the amount claimed.

7. In the upshot of the foregoing, the application herein is dismissed with costs in the cause.

8. Parties to file witness statement and documents.

9. Mention for pre-trial directions on October 18, 2023

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 3. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 3. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 8.2023HON. PAUL AOL MEMBER SIGNED 3. 8.2023Tribunal Clerk JemimahMiss Kimani holding brief for Mathea for Claimant.Gaita for RespondentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023