Neno Savings and Credit Co-operative Society Ltd v Wanja [2024] KECPT 913 (KLR)

Neno Savings and Credit Co-operative Society Ltd v Wanja (Tribunal Case 367/ E004 of 2022) [2024] KECPT 913 (KLR) (23 May 2024) (Judgment)

Neutral citation: [2024] KECPT 913 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 367/ E004 of 2022

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

May 23, 2024

Between

Neno Savings and Credit Co-operative Society Ltd

Claimant

and

Martin Kabecha Wanja

Respondent

Judgment

1. Through an Amended Statement of Claim dated 30th November, 2022, filed in the Tribunal on 4th April 2024 seeking for Judgement against the Respondent for;a.Principal amount totaling Kshs. 1,100,000/=b.Accrued interest and penalties of Kshs. 335,058/= as at 1st August, 2022. c.Accrued and accruing interest and penalties till payment in full.d.Interest on (a), (b) and (c) above at court rate.e.An order that Land Parcel Nos. Ndalani/Ndalani Block 1/1973 and Ndalani/ Ndalani Block 1/1974 used as security be disposed of to settle the amount due and owing.f.Cost of their suit.g.Any other or further reliefs that the Honourable Court may deem fit to grant.

2. The Claimant’s claim stem from a loan of Kshs. 1,100,000/= which was advanced to the Respondent when his Loan Application dated 30th April, 2015 was approved on 8th May, 2015.

3. In support of the Claim, the Claimant attached Member’s Loan Application form, Member’s Loan Statement, Witness Statement, Verifying Affidavit, List of Witnesses, List of Documents and an Affidavit of Service.

Claimant’s Case 4. The Respondent is a member of the Claimant who borrowed a Loan of Kshs. 4,000,000/= in 2014. The loan was secured by Log books of Motor Vehicle Registration No. KBN 555 D and KBW 850C, his shares and that of guarantors.

5. On 24/4/2014, cheques No. 2877,78,79,80 and 81 totaling Kshs. 4,000,000/= was delivered and acknowledged by the Respondent.On 30th April, 2015, the Respondent applied for a further loan of Kshs. 1,400,000/= of which Kshs. 1,100,000/= was approved and cheques No. 3366 and 3867 were dispatched to the Respondent. The Loan Application detail that this second loan is secured by the Respondent’s shares, guarantor’s shares and motor vehicle Registration Nos. KBN 281P, KBN 555D, KBW 850C and KZA 645 was to be repaid within 24 months.Resulting from failure to service the second loan and the interest, the Respondent made a repayment proposal to pay Kshs. 50,000/= per month vide a letter dated 3rd April, 2018 addressed to the Sacco.

6. In the same letter, the Respondent deposited his two title deeds Nos. Ndalani/ Ndalani Block 1/1973 and Ndalani/Ndalani Block 1/1964 as he looks for a buyer to buy the properties and offset the loan balance from the sale proceeds.

Respondent’s Case 7. Despite the Summons to enter appearance dated 3rd November, 2022 which was served upon the Respondent and the return of the Affidavit of Service served via email by Mr. Anthony G. Kabathi an advocate of the High Court, the Claimant failed to enter appearance and failed to file a Defence.

Process. 8. Acting on Order 10 Rule 4 and 10 of the Civil Procedure Rules 2010 which address the issues of consequences of non-appearance, default of Defence and failure to serve a party, the Claimant vide an Application dated 27th January, 2023 requested for Judgement against the Respondent.On 27th April, 2023, the Tribunal entered an Interlocutory Judgement in favour of the Claimant against the Respondent. The matter was then set for virtual formal proof hearing on 24. 1.2024. On 11/4/2024, the Claimant represented by Anderson Kesia who is the Chief Executive Officer and Josephine Njuma the Credit Officer upon the guidance of the Claimant’s Advocates.In the end, the Claimants abandoned prayer (e) in the prayers which is about an order the Land Parcels numbers Ndalani/Ndalani/Block 1/1973 and Ndalani/Ndalani Block 1/1974 which was used as security be disposed to settle the amount due and owing.

Formal Proof. 9. This sets in for purposes of Verification of facts and allocation of quantum. This was the holding in the case of Rosaline Mary Kahumbu v. National Bank of Kenya Ltd (2014) eKLR where the Court stated that a formal proof hearing, the party with the onus of adducing evidence that must satisfy the Court on the truth of the facts claimed.

10. Seized with the facts on the Claimant’s Statement of Claim, particularly under paragraph 15 which state“The Claimant’s Claim against the Respondent is for Kshs. 1,335,058/= being principal loan amount, interest and penalties on account as at 1st August, 2022 and the full particulars whereof are well known by the Respondent.”The Tribunal entered Judgement in favour of the Claimant against the Respondent.

11. It should not be lost in law that once a party has been served, he/she ought to enter appearance and file a Defence. In default, the court may be invited to make an assumption that the defaulting party has nothing to say or disinterested in the case and it must proceed without the Respondent’s presence.In the absence of any challenge of the Interlocutory Judgement enters on 27th April, 2023 by the Respondent, the Tribunal now affirms that the Interlocutory Judgement becomes a regular Judgement hence attract the provisions of Order 10 Rule (1) which state as follows;“Where the Plaints makes a Liquidated demand only and the Defendant fails to appear on or before the day fixed in the Summons or all the Defendant’s fail so to appear, the court shall request in Form No. 13 of Appendix A, enter Judgement against the Defendant or Defendants for any sum not exceeding the liquidated demand together with interest thereon from the filing of suit at such rate as the court thinks reasonable to the date of the Judgement and costs.”

12. Given that there is now a regular Judgement against the Respondent which has not been challenged or appealed against, we find that the prayers sought by the Claimant in the Amended Statement of Claim is capable of being granted except for prayer (e) which was abandoned at the formal proof stage.

Conclusion. 13. We find that the Claimant established their Claim on a balance of probability. Accordingly, we allow the Claimant’s on Amended Statement of Claim and enter judgement in favor of the Claimants against the Respondent as follows:Judgment is entered in favour of Claimant against Respondent.a.That the Respondent is hereby ordered to pay the Principal amount of Kshs. 1,100,000/= plus cost and interest.It is so decreed.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 23. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 23. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 23. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 23. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 23. 5.2024HON. PAUL AOL MEMBER SIGNED 23. 5.2024Tribunal Clerk JonahKamwaro advocate for the Claimant.Matter was not defended.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 23. 5.2024