Sardius Eldama School Limited v Starline Sacco, Formerly Baringo Farmers’ Sacco Society Limited [2023] KECPT 923 (KLR)

Sardius Eldama School Limited v Starline Sacco, Formerly Baringo Farmers’ Sacco Society Limited (Tribunal Case E474 /339 of 2023) [2023] KECPT 923 (KLR) (Civ) (26 October 2023) (Ruling)

Neutral citation: [2023] KECPT 923 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E474 /339 of 2023

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

October 26, 2023

Between

Sardius Eldama School Limited

Applicant

and

Starline Sacco, Formerly Baringo Farmers’ Sacco Society Limited

Respondent

Ruling

1. This Ruling dispenses with the Claimant’s Notice of Motion Application dated 23rd June 2023 supported by an Affidavit sworn by the Director of the Applicant one Abedi K. Kigen. The Application seeks the following orders:a.That this matter be certified urgent and it be dispensed with exparte on the first instance.b.That the Respondent skyline Sacco is hereby ordered to release motor vehicle registration KCB-355P registered in favour of Abedi K. Kigen to the Applicant forthwith; pending the hearing and determination of this suit.c.That pending the hearing and determination of this application interparties , the respondent either by itself, its agents, servants or employees are hereby ordered not attach any other asset, be it movable or unmovable belonging to the Applicant.d.That OCS Eldama- Ravine to ensure compliance of this orders.e.That costs of this application be provided.

2. The Application is premised on the grounds on its face which are inter alia that: This Tribunal issued orders on 21st June 2023 ordering the release of two motor vehicles KZE 018 and KXH 872 belonging to the Director which had been attached. None of the vehicles that had been attached is a collateral to the loan advanced to the Applicant, and that the reason why the director was singled out is because there is another matter between the director and the Respondents with the Business Premises Tribunal. That the Respondent has already attached the Applicant’s motor vehicle Registration Number KCB 355P registered in favour of the applicant. The Applicant further claims that there was no proclamation order before the vehicle was attached.

3. The Respondent filed grounds of opposition dated 27th July 2023 in which they claim that the Applicant lacks locus standi to prosecute the application as it is not registered owner of motor vehicle registration number KCB 355P.

4. In response to the grounds of opposition, the Applicant filed a further affidavit dated 10th August 2023. In the Further Affidavit, the Applicant agrees that indeed the motor vehicle registration number KCB 355P is registered in favour of the director and the Applicant has brought this suit solely through the director.

5. Both parties filed their submissions.

Analysis 6. The Applicant brought this Application to seek orders for the release of motor vehicle registration number KCB 355P. The basis of the Application is that the motor vehicle has been attached for a loan that was taken by the Claimant, yet the owner of the motor vehicle is the director of the Claimant and not the Claimant. The Respondent in their response did not controvert the evidence of the Claimants and indeed confirmed that the motor vehicle registration number indeed belonged to the director and not the Claimant. The only contention by the Respondent is that the Claimant has no locus standi to apply for the release of the motor vehicle, which we find have no basis since they did not deny that the motor vehicle was attached for the Claimant’s loans. The subject of attachment is the loan, which is a subject in the suit herein. We are satisfied by the admission of the Respondent that it attached another legal person’s motor vehicle for the loan of another.

7. Flowing from above, we find the Claimant’s Notice of Motion Application dated 23th June 2023 is merited, and the final orders are that:1. The Respondent to release motor vehicle registration number KCB 355P to the Claimant’s director with immediate effect.2. The Respondents to bear the costs of this Application.3. Mention for Pre-trial directions on 17. 1.2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023TRIBUNAL CLERK JONAHKipkurui advocate for RespondentKemboi advocate for ClaimantHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023