Thiong'o & another v Unaitas Sacco Society Limited [2025] KECPT 347 (KLR)

Thiong'o & another v Unaitas Sacco Society Limited (Tribunal Case E091 of 2025) [2025] KECPT 347 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KECPT 347 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E091 of 2025

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

June 26, 2025

Between

Peninah Wairimu Thiong'o

1st Claimant

Henry Thomas Mwangi Maina

2nd Claimant

and

Unaitas Sacco Society Limited

Respondent

Judgment

1. The Claim is instituted vide a Statement of Claim dated 11/2/2025 wherein the claimant is among others praying for a restriction on the Respondent to dispose 2nd Claimant property Land Reference Number JUJA/KALIMONI BLOCK 8/724.

2. The Statement is supported by Claimants’ documents dated 3/4/2021 and the Claimants’ Witness statement.

3. In the Statement of Claim, the 1st Claimant admits being granted a loan by the Respondent of Ksh. 5,696,000/= for which the 2nd Claimant property JUJA/Kalimoni BLOCK 8/724 was charged with the consent of the 2nd Claimant. The 1st Claimant avers that she was repaying the loan at Ksh. 66,796. 30/= per month which was restructured for Ksh. 43,659. 20/= for a period of 10 years.

4. The 1st Claimant admits that in October, 2024, she fell into arrears occasioning the Respondent to issue a Notice for Payment of Ksh. 594,694. 60/= being loan arrears. This notice was to run to January 2025. She alleges that on 4/2/2025, the Respondent issued a 40 days’ notice to sell the charged property. She alleges by this time, there were no arrears on the loan facility. The 1st Claimant is contesting the manner in which the Respondent is planning to dispose the charge property when there is no loan default.

5. The Claimant has also filed a response to Respondent Statement of Defence of 1/4/2025. During the hearing of the Claimants’ case on 24/4/2025, the 1st Claimant stated that she wanted to protect the charge property and continue repaying her loan with the Respondent.

6. She admitted that she filed this case upon receiving the notice from the Sacco on 4/2/2025. The 2nd Claimant admitted she was the owner of the charge property and that she was aware the 1st Claimant received a notice to sell the charge property. In their Written Submissions dated 30/4/2025, the 1st Claimant states that as at January 2025, she had no pending installments to clear.

7. She stated that the document she received on 4/2/2025 was a notice to sell and not a demand letter. Both Claimants’ admitted that the 1st Claimant defaulted in her loan in 2024.

8. The Claimant argued that prior to the expiry issued in October 2024, she cleared her loan arrears and resumed monthly repayments, henceforth the notice to sell of 4/2/2025 was not justified. She avers that the Respondent should not have recalled the whole loan since she was already repaying and that the repayment period had not expired.

Respondent’s Case 9. The Respondent’s case is instituted vide the Respondent’s Statement of Defence dated 27/3/2025 wherein the Respondent admits issuing the statutory notice of 24/10/2024 and a notice to sell of 4/2/2025 in compliance with the Land Act 2012.

10. Further, the Respondent denies that the Claimant had repaid her arrears in full, states that the notice to sell was due to an outstanding loan balance of Ksh. 3,288,935. 45/= as at 4/2/2025.

11. The Respondent has filed a bundle of documents dated 17/4/2025 in support of case. The Respondents’ case came up for hearing on 24/4/2025 where the Respondents’ witness Mr. Julius Gikonyo adopted his Witness Statement dated 17/4/2025 and documents of same date as his evidence in chief.

12. He stated that a non-performing loan is one which is outstanding for 8 months. He averred that the Claimant had cleared the Ksh. 594,694/= in January 2025. He admitted ordering resumption of recovery of the loan of the 1st Claimant.

13. In their Written Submissions dated 30/5/2025 the Respondent outlined three issues for determination viz; Whether the Statement of Claim of 11/2/2025 is merited.

Whether the Claimant is entitled to prayers sought.

Who bears the cost.

14. The payment of Ksh. 594,694/= is not in contest and that the prayers sought by the Claimants’ are not tenable since the Claimant has paid the arrears owed to the Respondents.

15. The Respondent avers that all the notices issued were legal and issued under the law since the Claimant had admitted defaulting in her loan.

16. The Respondent prays for dismissal of the case which was filed immediately she cleared her outstanding loan arrears.

Analysis 17. We observe that both parties are in agreement regarding the loan granted to the Claimant and that she defaulted in the repayment in 2024. Both parties also agree that the Claimant cleared Ksh. 594,694/= that was loan outstanding to the Respondent.

18. We note that while the Claimant defaulted in her loan repayment in 2024, she had made earlier efforts in 2022 to restructure the loan which was done on 16/9/2022, a testimony of her commitment to repay her loan.

19. It is also observed that the statutory notice dated 24/4/2024 is recalling the total loan outstanding of Ksh.3,939,071. 61/= owing as at 23/10/2024. While the Respondent submits that they followed the provisions of the Land Act, 2012 in issuing the statutory notice, we note that the 1st Claimant had already shown commitment towards resuming her loan repayment and had indeed cleared her arrears by January, 2025.

20. We observe that the Respondent was in a hurry to sell the Claimant’s security property which is not in the cooperative spirit of doing business.

21. The Claimant has severally stated that she is ready to continue repaying the loan under the restructured repayment programme. The Respondent should have given the 1st Claimant an opportunity before resorting to invoking the sale of the security. As regards the allegation of harassment of the 1st Claimant by the Respondent, no sufficient evidence has been filed in this Tribunal beside what is filed regarding the loan default and subsequent notice to sell the security property due to loan default.

Conclusion 22. In line with the foregoing, and in conformity with the cooperative spirit of doing business, we find that the claim is partially merited and hereby make the following orders;a.Restraining orders are herby issued to the Respondent from interfering with, attaching, appointing an auctioneer, selling or putting up for sale either by public auction or private treaty or otherwise transferring and/or in any way disposing of the 2nd Claimant’s property land reference number JUJA/Kalimoni Block 8/724 for as long as the Claimant is serving her loan.b.1st Claimant to continue repaying her loan as per the current terms as contained in the loan restructure dated 16/9/2022. c.Fails.d.Succeeds.e.Costs to the Claimant.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 6.2025HON. BEATRICE SAWE MEMBER SIGNED 26. 6.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 6.2025HON. PHILIP GICHUKI MEMBER SIGNED 26. 6.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 6.2025HON. PAUL AOL MEMBER SIGNED 26. 6.2025Tribunal Clerk Arnold GechikoNone appearance by parties.Judgment delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 6.2025