Ndiba v New Milimani Sacco & another [2023] KECPT 1107 (KLR)

Ndiba v New Milimani Sacco & another (Tribunal Case 704 of 2016) [2023] KECPT 1107 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1107 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 704 of 2016

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

November 30, 2023

Between

James Kirobi Ndiba

Claimant

and

New Milimani Sacco

1st Respondent

Top Link Auctioneers

2nd Respondent

Ruling

1. The facts of this case go way back 2016 when the Claimant approached this Tribunal forstay and temporary injunction orders restraining the Respondents from transforming laid parcel number Limuru/Bibironi/1407 which had been used as security for a loan which the claimant took in 2013. This Tribunal found that the auction had already taken place and could not grant Injunctive Orders in vain to a third party who was not even a party to the proceedings.On 20th June, 2022, the Claimant filed a Notice of Motion Application under Section 1A,1B,3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya seeking among others orders that:a.The Respondent be compelled to allow him to access his account and immediately release all balance of proceeds from sale of suit laid pending the determination of the Application.b.That the Respondents to be ordered to pay him an interest of 15% of the withheld proceeds since 2016 when the suit properly was sold.

2. The Application was based on the grounds that the auction of the suit property was done in 2016 and the Respondents without justification have withheld the balance after deducting the loan balance.The Claimant has attached in evidence his Statement of Account showing it be a balance sum of Kshs. 1,200,000/= which has not been released to him.

3. Issue for Determinationi.Whether the Claimant should be allowed to access his account and have the balance of proceeds from the sale of the suit property parcel number Limuru/Bibironi/1407 released to him.ii.Award of interest on the withheld proceeds from 2016 when the suit property was sold. Issue One: Whether the Claimant should be allowed to access his account and have the balance of proceeds from the sale of the suit property parcel number Limuru/Bibironi/1407 released to him.It is important to note from the onset to access an account or monies held in an account on behalf of a party in a proper working system should never really be an issue to be determined in court -especially when there is no contention relating to that account or monies in that account or who should access the account or monies in that account. 4. In this particular case, the Claimant is the owner of the account in question and does not need to show or prove or demonstrate anything to access his account or monies held in his account. As such, we make a finding that the 1st Respondent has an obligation to release the proceeds from the balance to the Claimant less the direct expenses related to the sale or recovery of the loan in question. From evidence presented in court, that figure stands at Kshs. 1,200,000/=.

Issue Two: Award of interest on the withheld proceeds from 2016 when the suit property was sold.Award of interest by courts is a discretionary remedy unless that discretion has been constrained by an agreed instrument between parties, or an act of Parliament.In this particular case, the 1st Respondent was under an obligation to immediately or within a reasonable time release the balance of proceeds from the sale of the suit property less the direct expenses related to the sale or recovery of the loan in question.Most courts have taken the position that the reasonable amount of time it should take for a party to calculate and or settle direct expenses related to the recovery of a loan after auction and remit the balance of the proceeds should not be in excess of 30 days. 5. As such, we take the position that the balance of Kshs. 1,200,000/= should have been released to the Claimant and he be allowed to access it freely or without unnecessary huddles within one month of the auction, failure to which, that amount of money began to attract interest.

Final Ordersi.The Notice of Motion Application for 28th April, 2023, and that of 20th June 2022 are allowed to the extent that:ii.Orders are issued to the Respondent to allow the Claimant access his account and receive all the balance of proceeds from the sale of the suit property.iii.Interest is awarded to the Claimant at Tribunal rates for the sum of Kshs. 1,200,000/= from 1st December, 2016.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON - SIGNED - 30. 11. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 11. 2023HON. BEATRICE SAWE - MEMBER - SIGNED - 30. 11. 2023HON. FRIDAH LOTUIYA - MEMBER - SIGNED - 30. 11. 2023HON. PHILIP GICHUKI - MEMBER - SIGNED - 30. 11. 2023HON. PAUL AOL - MEMBER SIGNED - 30. 11. 2023Tribunal Clerk JonahHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED - 30. 11. 2023