Otumba v Owiti [2025] KECPT 194 (KLR)

Otumba v Owiti (Tribunal Case E996/929 of 2022) [2025] KECPT 194 (KLR) (Civ) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 194 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E996/929 of 2022

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

February 27, 2025

Between

Maxwell Otumba

Claimant

and

Meshack Owiti

Respondent

Judgment

1. The matter for determination is contained in the Statement of Claim dated 18/11/2022 accompanied by the Claimant’s witness statement, documents and written submissions.

2. In the statement of claim the Claimant seeks a refund of Ksh.391,744/= savings from the Respondent, cost of the suit and interest. This position is reaffirmed in the Claimant’s witness statement dated 8. 11. 2022.

3. The Claimant’s matter came up for hearing on 16/4/2024 wherein the Claimant adopted his Statement of Claim as his evidence in Chief.

4. He stated that he guaranteed the Respondent a loan which he defaulted occasioning Safaricom Sacco to deduct the defaulted amount to the tune of Ksh.391,744/=.

5. He averred that the Respondent owed him the money that was deducted by the Sacco to repay his defaulted loan.

6. In his written submissions the Claimant avers that there is a breach of contract since the loaners who are the Respondents refused to repay their loans.

7. He avers that the guarantors have a secondary obligation in this matter and that the principal loaners should have repaid this loans.

8. The Respondent filled a Statement of Defence dated 9/1/2023 where he admits that both the Claimant and the Respondent were members of Safaricom Sacco but denies that the Claimant guaranteed him any loan.

9. The Respondent’s case heard on 8. 7.2024 wherein the Respondent witness Mr. Moses Oduor appeared for Case No. E928 of 2022. He admitted having taken a loan from Safaricom Sacco and the Claimant was his guarantor.

10. He avers that on receipt of a demand notice he was willing to discuss the default with the Claimant. He averred that he had guaranteed the Claimant loans. He admitted not sharing his loan Statements in Court. He averred that the Sacco should have exhausted all avenues to recover this money.

11. In the Respondent submissions dated 21. 11. 2024 the Respondent avers that he did not borrow from the Claimant thus owes him no money.

12. The Respondent argue that the Claimant had not exhausted available avenues to stop loan deduction before filing this case hence terms this case premature.

Analysis 13. The issue for this Tribunal to establish is whether the Claimant guaranteed the Respondent any loan with Safaricom Sacco. Evidenced was produced to support proof that indeed the Claimant guaranteed the Respondent loan. Payment guarantee dated 4. 11. 2019 is enough evidence of this guarantee-ship.

14. Loan application form dated 4. 11. 2019 for the Respondent in case No.929 of 2022 for Ksh.2. 250,000/= and guaranteed by the Claimant among other guarantor has been filed as evidence.

15. Similarly, loan application dated 6. 6.2019 for Respondent in case No.928 for a consideration of Ksh.8,500. 000/= is filed as evidence. In both the filed loan applications, the Claimant is a guarantor.

16. During the hearing of the case the Respondent admitted that they were both members of the Sacco. The Respondent denied owing the Claimant any money

17. The Respondent cannot deny that the Claimant was their guarantor for the loans they had taken with the Sacco.

Conclusion 18. We have considered the evidences of both parties and are of the opinion that the Claimant has proved that he indeed guaranteed the Respondent loan which the latter defaulted occasioning the Sacco to deduct the guarantor the defaulted amounts.

19. In this regard we find that the Claimant has proven the Claim on a balance of probabilities. We therefore enter judgement in favour of the Claimant against the Respondent and order as follows:a. Respondent to refund Claimant Ksh.391,744/= and interest at Tribunal rates from the date of filling claim.b. Plus, Cost of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBITHIS 27TH DAY OF FEBRUARY,2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 2.2025Hon. Beatrice Sawe Member Signed 27. 2.2025Hon. Fridah Lotuiya Member Signed 27. 2.2025Hon. Philip Gichuki Member Signed 27. 2.2025Hon. Michael Chesikaw Member Signed 27. 2.2025Hon. Paul Aol Member Signed 27. 2.2025Tribunal Clerk JonahChimei advocate for ClaimantBibiu holding brief for Onyango for RespondentBibiu advocate for Respondent- I pray for 30 days stay of executionChimei advocate – No objection.Order – 30 days stay of execution granted.Hon. B. Kimemia Chairperson Signed 27. 2.2025