Ngugi v Njoroge [2025] KECPT 277 (KLR)

Ngugi v Njoroge (Tribunal Case 104/E048 of 2023) [2025] KECPT 277 (KLR) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 277 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 104/E048 of 2023

BM Kimemia, Chair, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

April 29, 2025

Between

Peter Gitau Ngugi

Claimant

and

Dimitrious Ndungu Njoroge

Respondent

Ruling

1. The Notice of Motion Application dated 29th February, 2024 was filed by The Respondent for:Orders:1. Spent2. That pending the inter-parties Hearing and determination of this Application there be stay of execution pending the Hearing and determination of this Application and Suit.3. That this Honorable Court be pleaded to vary or review its Judgment issued on the 30th March 2023 by reviewing the decretal amount by reducing it by Kshs. 72,600/=4. That the costs of this Application be provided for.

2. The Application is supported by the Respondent’s Affidavit sworn on 29th February 2024 and the grounds on the Application.

3. The grounds of the Application are that the decretal amount awarded is erroneous ; that the Claimant failed to disclose to the Court that the Respondent had paid the sum of Kshs. 72,600 which according to the Respondent was deducted from the Claimant’s demand letter.

4. That the Claimant’s advocates confirmed that his client did acknowledge to him that he had received the said sum of Kshs. 72,600 and the Respondent’s proceeded to advice his advocates to release Kshs. 60,000 to the Claimant’ advocates.

5. That upon the release of the said amount the Claimant’s advocates sent an email to the Respondent’s Advocates informing them that the Claimant had retracted on his stand of payment of Kshs. 72,600/= and requested that the Respondent settles the whole decretal amount; that the Claimant wants to unjustifiably enrich himself.

6. The Respondent in his Affidavit reiterates the grounds of the Application and has annexed the demand letter and email extract as DNN – 1A and DNN - 1B; copies of cheque of Kshs. 60,000/= and deposit slip as DNN – 2 and DNN – 3.

7. In response to the Application, the Claimant filed a Replying Affidavit sworn by him on 19th April 2024; in which he opposes the Application dated 29th February 2024 and states that this Application is an attempt to review the Application dated 27th June 2023 which was dismissed by The Tribunal on 4th September 2003, which sought to set aside and review the Judgment in this matter which is the same thing the current Application seeks to do; that the Applicant’s advocate requested the Kshs. 72,600/= be deducted from the decretal amount.

8. That the Claimant’s advocates did not confirm this as evidenced in the letter and email correspondences attached to the Application; that the said amount was factored in the documents/claim filed in Court; that the request to deduct Kshs. 72,600/= amounts to reviewing/setting aside the Judgment in place.

9. That the Defendant could have first settled the more than Kshs. 351,178/= owed less the Kshs. 72,600/= and then contest the Kshs. 72,600/=; that the Respondent was to clear the decretal sum within 3 months of paying the first amount of Kshs. 60,000/= but did not.

Determination: 10. The suit herein was filed by the Claimant vide the Statement of Claim dated 8th December 2022, filed on 21st February, 2023 seeking Judgment for the sum of Kshs. 310,824/= deducted from his shares and savings by Orthodox Church Sacco Limited on account of the Respondent’s Loan which he had guaranteed to the tune of Kshs. 390,128/=.

11. The Respondent failed to file Defence within the requisite time, resulting in a request for Judgment made by the Claimant.

12. Default Judgment was entered against the Respondent in favour of the Claimant on 3rd March, 2003, in the sum of Kshs. 310,824/=.

13. Thereafter, the Respondent filed the Application dated 27TH June, 2023.

14. It is sufficient to state that the orders sought in said application fifer form the orders sought in the present Application in the previous application sought to set aside the Default Judgment whereas the current Application seeks review of the Default Judgment.

15. It is on record that whereas the Application was filed on 29/02/2024, the parties on 15/05/2024 intimated to the Tribunal that they were amendable to negotiation, after which the Tribunal scheduled the matter to 10/06/2024 for mention for the Notice To Show Cause dated 29/02/2024 and adoption of Consent.

16. It is no longer in dispute that after the filing of the Application dated 29/02/2024 and the Replying Affidavit thereto, the Respondent made some payments towards the decretal sum.

17. On 10/06/2024, it was indicated by the Respondent’s Advocate that the sum of Kshs. 100,000/= had been paid out of Kshs. 351,178/=; that there was a contested sum of Kshs. 72,600/= while it was indicated by the Claimant’s advocates that out of Kshs. 362,471/= accrued interest being factored in, Kshs. 60,000/= had been paid. We note that the Claimant’s Counsel did not deny payment of Kshs. 100,000/=.

18. 0n 06/08/2024, it was stated to The Tribunal that the sum of Kshs. 70,000/= the same morning and more time was agreed upon for further payment.

19. On 11/10/2024 the Claimant’s advocates confirmed receipt of Kshs. 70,000/= on the same morning and that the amount paid by the Respondent s at the said date was Kshs. 300,000/= and that the balance was Kshs. 91,000/=; an amount disputed by the Respondent’s advocates as the Notice To Show Cause was for Kshs. 351,178/=.

Disputed Amount: 20. The Claimant states that the disputed sum of Kshs. 72,600/= was factored in when the claim was filed; while the Respondent has vehemently stated that the said sum ought to be deducted from the decretal sum.

21. Whereas the Claimant states that the said Kshs. 72,600/= already factored in by the time the Claim was filed; the only reference we find on the paid amount before suit is under the Respondent’s Exhibit DNN – 1A being enclosure thereto, a letter dated 12th November, 2020 by the Claimant to the Sacco.

22. Therein, we note that the sum of Kshs. 310,824/= then due to the Sacco is adjusted by the Claimant by deducting Kshs. 72,600/= resulting in an amount of Kshs. 238,224/=.

23. By virtue of the fact that the Claimant does not dispute payment of the said Kshs. 72,600/= by the Respondent, a position confirmed by his advocate in the email of 10th November, 2023, the only issue is therefore whether the said sum of Kshs.72,600/= was paid and to what amount of money it was applied to the debt before the suit was filed.

24. From the said letter dated 12th November, 2020 which has not been disputed or controverted by aforesaid Respondent and the advocates’ email, we are convinced, on a balance of probability that the sum of Kshs.72,600/= was deducted from the sum of Kshs. 310,824 before the suit was filed.

25. We therefore allow prayer 3 of the Respondent’s Notice of Motion Application dated 29th February, 2024, thereby reducing the decretal sum by Kshs. 72,600/=.

26. The costs of this Application are awarded to the Respondent/Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 4.2025Tribunal Clerk JemimahNo Appearance by Parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025