Njumea v Abdalla [2025] KECPT 272 (KLR)

Njumea v Abdalla (Tribunal Case 559/E604 of 2023) [2025] KECPT 272 (KLR) (Civ) (29 April 2025) (Judgment)

Neutral citation: [2025] KECPT 272 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 559/E604 of 2023

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

April 29, 2025

Between

Joseph Kigathi Njumea

Claimant

and

Christine Ngunyu Abdalla

Respondent

Judgment

1. The origin of the judgment emanate from a Statement of Claim dated 4/8/2023 which was filed by the Claimant in the Tribunal on 26/9/2023. The background of the Claim is that on 6/5/2017 the Claimant stood on a guarantor to the Respondent to be given a loan of Ksh. 900,000/= by Tower Sacco Limited. It was a term in the loan application form that if the Respondent failed to repay the loan and its interest within 36 months the guarantors deposits would be attached.The Respondent defaulted and the Sacco went ahead to attach the guarantors share deposits of which the Claimant was one of them.

2. Aggrieved by the Sacco’s action, the Claimant wrote a letter of demand dated 14/3/2023 addressed to the Respondent and demanded to be paid Ksh. 214,429. 30/= and loss of dividends for the year 2021,2022 and 2023 at a rate of Ksh. 25,982. 04/= per year. Together with the 3 years loss of dividends, the amount demanded stood at Ksh. 292,375. 33/=.

3. Vide a letter dated 27/3/2023, the Respondent acknowledged receipt of the Claimant’s demand letter and confirmed that she was willing and committed to pay back the amount.This is further re-affirmed under Paragraph 6 in the Respondent’s Statement of Defence dated 24/11/2023 where she stated as follows;Paragraph 6; “In response to Paragraph 7 of the Statement of Claim, the Respondent avers that she has been making payments in instalments as agreed and the suit filed herein is purely premature.”

4. When the matter came up during pre-trial directions on 7/8/2024, the counsel for the Respondent told the Tribunal that the Respondent had paid Ksh. 296,613/= and that the only issue remaining was on the interest and the costs of the suit.The Tribunal gave the parties time to agree and when they could not make headways, they were directed to file Written Submissions.

Claimant’s Written Submissions 5. The Claimant confirmed that before this matter was settled for hearing, the Respondent paid Ksh. 296,613/= and left out the interest and the cost.He went further to insist that he is entitled to costs by reproducing the provisions of Section 27 of the Civil Procedure Act to back up his belief.

6. While citing several authorities in the Submissions, the Claimant raised the pertinent questions which goes to the core of our determination of this suit. These are;i.Whether the payment of the Principal Sum of Ksh. 296,613/= before hearing can be regarded as a successful suit or it is defeating the Claim to judgment or in part.ii.Would the Respondent have paid the Ksh. 296,613/= if the Claimant had not filed the Claim before the Tribunal?iii.If there was an agreement to pay the money in instalments of Ksh. 5,000/= per month by the Respondent, why would she not produce the agreement or show the monthly payments before she paid the Ksh. 296,613/= at once?

Respondent’s Written Submissions 7. The Respondent submitted that she paid the Ksh. 296,613/= being full and final payment for the sum claimed by the Claimant.She further submitted that she had agreed with the Claimant that he would withdraw the Claim once he gets the money without pursuing interests and costs.

8. Quoting Act 159(2)(c) of the Constitution of Kenya, the Respondent stated that she and the Claimant resolved their dispute through Alternative Dispute Resolution Mechanism. She therefore requested the Tribunal to uphold the settlement agreement which was reached by the parties.On the issue of costs, the Respondent brought out the provision Section 27 of the Civil Procedure Act and dwelt on costs of a compromised suit.

9. In the list of authorities that the Respondent cited the Principle that “Costs follows the event” run through all of them.

Analysis And Determination 10. Having read and examined the Statement of the parties together with the evidence on record the issue for us is to determine whether the Respondent should pay the cost and interest or not.It is not in dispute that the Respondent made an admission in her letter dated 24/3/2023 that she borrowed a loan from Tower Sacco and that she was committed to repay the Claimant who was one (1) of his guarantors. Share deposits was attached on 12/9/2020. Between the time the Sacco attached the Claimant’s deposits up to the date of demand letter on 14/3/2023, it is not clear whether this is the period in which the parties were negotiating to settle the matter out of court or not.To put this in perspective, the Respondent in her Written Submissions paragraph 26 stated that:“The parties before filing of this suit had agreed that the Respondent would pay the Claimant in monthly instalment of Ksh. 5,000/= until payment in full.”

11. The paragraph and a letter dated 27/3/2023 filed by the Respondent speak to the admission of the amount by the Respondent.What is left therefore is for the Tribunal to invoke order 13(1) which provides that:” Any party to a suit may give notice by his pleading or otherwise in writing, that he admits the truth of the whole of the case of any other party.”

12. Given that the Respondent has admitted and even set-out a payment plan, the issue is now settled. We move to the next frontier of whether the earlier negotiation alluded to by the Respondent was honoured or not?It is on record that the Respondent did not honour the agreement (if there was any) which made the Claimant to seek a redness in this Tribunal. Even after being served with the Statement of Claim, the Witness Statement and the List of Documents, the Respondent filed a sham Defence full of denials and clear contradiction with what was submitted. As a Pastor, the least that was expected from the Respondent is to look for the Claimant and agree on a payment plan. Instead the Claimant in his Witness Statement stated that he tried to reach the Respondent but she became evasive.

13. After noticing that she did not have a reason to pay the Claimant the amount attached and the dividends lost in 2021,2022 and 2023, she opted to pay Ksh. 296,613/= which was made of the principal amount and the dividends leaving out the issue of costs and interest.

14. While the issue of costs and interest in the subject of this suit, we have analysed the Written Submissions of each of the parties and the Tribunal is in concurrence with the parties that Section 27 of the Civil Procedure Act provide that costs should be awarded to the party who succeed in a given suit, in other words “costs shall follow the event.”

15. In the instant case it follows that the Claimant was paid by the Respondent at the instance of filing this suit.If the Claimant had not filed the suit, would the Respondent have paid him? The obvious answer is a No because there is no explanation orally or on record as to why the Respondent could not honour the agreement that she allegedly stated that she entered with the Claimant prior to the filing of the suit.It is the suit which forced the Respondent to pay the amount she paid to avoid being embarrassed at the point of hearing. However, the timing of the payment was too late when already the Claimant had engaged the services of an Advocate who prepared pleadings, attended four (4) Mentions on 28/9/2023, 7/8/2024, 5/11/2024 and 4/2/2025 apart from attending to the Respondents’ responses.

16. Clearly the above services must have been paid by the Claimant having been forced by the evasiveness of the Respondent to seek for justice in the Tribunal. In ordinary circumstances if the Respondent had attempted to reach out to the Claimant and agree on a payment plan and honour it, the sought-out cost would not have been incurred.

17. It is therefore our finding that even if the Respondent has paid the Principal sum and dividends, she must pay the cost of this suit.

18. Regarding the argument of the Respondent that the suit did not proceed to trial and that it was compromised in between. We have tried to read through all the statements and the evidence on record and have not come across where parties agreed to compromise the suit or withdraw it.

19. According to black law dictionary the term Compromise means:“An agreement between two or more people to settle a dispute, where each party surrenders something in exchange for a settlement. Essentially, it's an agreement reached through mutual concessions.” (please look into the same mama sikuelewa niligoogle tu)Many times, when a wish to negotiate with a claimant, upon instructions, the Advocate of the Respondent seek for more time from the Tribunal to enable the parties to negotiate and come back with a consent.

20. In the instant suit, there was no such oral application neither was there any consent which was prosecuted to the Tribunal.It is therefore our finding that there was no such a thing like compromise or discussion to withdraw the suit.Turning to paragraph 25 of the Respondent Written Submissions which state:“It is evident that the Claimant only intention was to get a refund of the money deducted.”

21. In other words what the Respondent is alleging here is that the Claimant did not make a prayer to be paid for costs and interests.

22. A look at the Claimant’s Statement of Claim dated 4/8/2023, it is clear that among the three (3) prayers sought, prayer (b) read “costs of this suit plus interest” which was repeated in his Written Submissions dated 29/10/2024. On this note, we find that the argument advanced by the Respondent regarding that the Claimant did not pray for payment of costs and interest to hold no water hence we dismiss it as it is hollow with no tail or head.

23. In conclusion, having considered the evidence of both the Claimant and the Respondent, it is our finding that the Claimant has established his case and deserve to be paid Ksh. 292,375. 33/=.Costs and interest.Consequently, we hereby enter judgment in favour of the Claimant against the Respondent for the payment of Ksh. 292,375. 33/=.Cost and interest at the Tribunal rate from the date of filing this suit to the date of payment in full.

JUDGMENT 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. 4.2025Hon. Paul Aol Member Signed 29. 4.2025Tribunal Clerk J. KokiWaichungo for ClaimantNone appearance for RespondentHon. B. Kimemia Chairperson Signed 29. 4.2025