Rafiki Microfinance Bank Limited v Odero [2023] KEMC 177 (KLR)

Rafiki Microfinance Bank Limited v Odero (Civil Suit E3534 of 2020) [2023] KEMC 177 (KLR) (8 June 2023) (Judgment)

Neutral citation: [2023] KEMC 177 (KLR)

Republic of Kenya

In the Chief Magistrate's Court (Milimani Law Courts)

Civil Suit E3534 of 2020

JP Aduke, SRM

June 8, 2023

Between

Rafiki Microfinance Bank Limited

Plaintiff

and

Samuel Peter Ochieng Odero

Defendant

Judgment

1. The Plaintiff filed this suit against the defendant seeking recovery of KES 3,044,566/- from the Defendant on the ground of breach of contract and seeking mandatory orders of repossession. In the plaint on record, the plaintiff avers it entered into a financing agreement for purchase of motor vehicle registration number KBU 232H.

2. Further, that following the said agreement, the defendant was to service the said loan over a period of 48 months which the Defendant did not do.

3. The Plaintiff blames the Defendant for breach of contract. The Plaintiff further avers that the said loss of KES 3,044,566/- was solely caused by the breach of contract by the Defendant and seeks to recover the said amounts.

4. The particulars of breach are as captured in the Plaint. The Plaintiff prays for KES 3,044,566/-, mandatory orders of repossession of the vehicle the subject of the suit, costs of the suit and interest at court rates.

5. Return of Service on Record shows that the defendant was served with the suit papers. The Defendant entered appearance and filed a defence within the stipulated period. At the hearing thereof, only the plaintiff showed up and called one witness who testified on oath. In view of the absence of the Defendant, Plaintiff Counsel prayed for an order closing the defence case. The court allowed this oral application. Thereafter, parties filed written submissions.

6. The issue for determination before this court is one:1. Whether or not this court has jurisdiction to entertain this suit;2. Whether or not a contract existed and if the same was breached and therefore enforceable.

7. By the plaintiff’s own admission there was a suit filed in Nakuru being Nakuru Civil Case 307 of 2019 involving the same parties and arising out of the same series of events. From the documents available on record as at the date of writing this judgment, I have not seen any proof on file of the status of this case. The provisions of section 6 and 7 of the Civil Procedure Act Cap 21 Laws of Kenya are very clear and need not be reproduced herein. Form the documents available on record, I have neither seen a certified copy of proceedings nor a copy of a judgment or ruling on the aforementioned civil case. The onus to provide the court with this information lay with the Plaintiff. In the absence of this and to avoid duplicity of orders, I am unable to entertain this suit. Accordingly, I direct as follows:1. Suit struck out;2. No orders on costs;3. Plaintiff is at liberty to file a miscellaneous application seeking appropriate reliefs in Nakuru Civil Case 307 of 2019 when ready.4. File Closed.

ADUKE JEAL PRAXADES ATIENOSENIOR RESIDENT MAGISTRATEJUDGEMENT SIGNED AND DATED THIS 8TH JUNE 2023 IN THE PRESENCE OF THE PARTIES AT 11. 30AM.In the presence of :1. Court Assistant: Benjamin Kombe.2. Counsel for the Plaintiff- …………………….……… (Name, Signature, Date)3. For the Defence: ……………………………………………… (Name, Signature, Date)