[2020] KECPT 112 (KLR)
The core issue is whether the respondent lawfully attached and sold the claimant's cows as security for a loan. The evidence shows the claimant took a loan, offered two cows as security, and made payments towards the loan. The respondent asserts the claimant was in arrears and that the cows were attached and...
Source-derived case information.
- Citation
- [2020] KECPT 112 (KLR)
- Parties
- Applicant: Carolyn Achieng Otieno; Respondent: Luhano FSA Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 570 of 2017
- Procedural Posture
- Claim / Awaiting Judgment After Full Hearing and Submissions
- Outcome
- Judgment reserved; matter pending final determination after full hearing and submissions.
- Legal Topics
- Loan Default, Security for Loans, Auction of Property, Wrongful Attachment, Compensation for Loss, Cooperative Societies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carolyn Achieng Otieno
Applicant
Luhano FSA Sacco Society Limited
Respondent
Procedural Posture
Claim / Awaiting Judgment After Full Hearing and Submissions
Legal Issues
- 1 Whether the respondent lawfully attached and sold the claimant's cows as security for the loan.
- 2 Whether the claimant had fully repaid the loan prior to the attachment and sale of her property.
- 3 Whether the claimant is entitled to compensation for the value of the cows and related losses.
Ratio Decidendi
The core issue is whether the respondent lawfully attached and sold the claimant's cows as security for a loan. The evidence shows the claimant took a loan, offered two cows as security, and made payments towards the loan. The respondent asserts the claimant was in arrears and that the cows were attached and auctioned after due notice. However, the claimant produced evidence of full repayment and alleged that the attachment occurred after the loan was cleared, with no proper proclamation or notice. The veterinary valuation established the value of the cows at Kshs.125,000. The respondent admitted the loan was cleared on 25.9.2017, the same date as the auction. The tribunal must determine...
Court Disposition
Judgment reserved; matter pending final determination after full hearing and submissions.
Orders
- Parties to file and serve written submissions within 10 days each.
- Mention for compliance and fixing of judgment date set for 28.2.2020.
Full Case Text
Judgment text and source record
434 paragraphs
REPUBLIC KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
C.T.C. NO.570 OF 2017
CAROLYN ACHIENG OTIENO..................................CLAIMANT
VERSUS
LUHANO FSA SACCO SOCIETY LIMITED.....RESPONDENT
PROCEEDINGS
25. 9.17
Certificate of urgency, notice of motion, supporting affidavit, statement of claim, verifying affidavit, list of witness, list of documents , witness statement all drawn and filed by N.O.Sumba and Company Advocates.
Signed
C. Kithinji
Deputy Chairman
26. 9.2017
C. Kithinji - Deputy Chairman
Ken Oduor - Court Clerk
Mr. Sumba for the applicant. The application is dated 25. 9.2017. We are seeking matter be certified urgent and prayer 2 and 3. The loan was paid in full. On 23. 8.2017 the Auctioneer took the cows from the Claimants home. There is impunity as the loan was paid in full. They attached Caroline Atieno instead of Adhiambo.
Signed
C. Kithinji
Deputy Chairman.
Court- Application noted. Interim orders granted in terms of prayer 1 and 2.
To be served. Hearing on 4. 10. 2017.
Signed
C. Kithinji
Deputy Chairman.
26. 9.17
4. 10. 2017
A.Ithuku - Chairman
C.Kithinji - Deputy Chairman
F.F.Odhiambo - Member
R. Leweri - Court Interpreter
Mr. Marara – I am holding brief for Mr. Sumba for claimant/applicant
Ms. Onyango- I am holding brief for Mr. Onyango. He has just been instructed for 1st Respondent.
Signed
A.Ithuku
Chairman.
Mr. Marara- I am ready to proceed. We served the Respondents. 2nd Respondent has not filed any papers.
Signed
A.Ithuku
Chairman.
Ms. Onyango- Mr. Onyenga is seeking leave to file a response. He is asking for adjournment.
Signed
A.Ithuku
Chairman.
4. 10. 17
Mr. Morara- objection. The subject matter is held by 2 respondent.
Signed
A.Ithuku
Chairman.
4. 10. 17
Order- application for adjournment noted,. Leave granted. Hearing on 19. 10. 17. Correspondence Leave granted. Orders granted.
Signed
A.Ithuku
Chairman.
4. 10. 17
19. 10. 2017
A.Ithuku - Chairman
C.Kithinji - Deputy Chairman
P. Swanya - Member
C. Maina - Court Interpreter
Mr. Sumba – I am for applicant.
Mr. Anyango - I am holding brief for Mr. Onyango for 1st Respondent.
Signed
A.Ithuku
Chairman.
Mr. Sumba- I was served with a Replying Affidavit yesterday. I have filed a Supplementary Sffidavit this morning. It seeks to clarify an issue. I am ready to proceed.
Signed
A.Ithuku
Chairman.
Ms. Anyango- Mr. Onyango is not in a position to proceed. The attached goods are animals. The amount has been paid in full. I would like to take another date. We are negotiating.
Signed
A.Ithuku
Chairman.
19. 10. 17.
Mr. Sumba- There was no proclamation.
Signed
A.Ithuku
Chairman.
19. 10. 17
Order- We note the submissions by Ms. Anyango and Sumba. The debt is admitted to be fully paid. What may at the end be an issue is auctioneers costs. We order that the cows be released to the claimant pending hearing and determination of the application. Hearing on 10. 1.2018.
Signed
A.Ithuku
Chairman.
19. 10. 17
1. 11. 2017
N. O. Sumba fix a mention date on 24. 11. 2017. Respondents to be served.
Signed
Tribunal clerk
24. 11. 17
19. 10. 2017
A.Ithuku - Chairman
Ken Oduor - Court Interpreter
Mr. Sumba – I am for claimant.
Mr. Mugambi- I am holding brief for Mr. Oyango for Respondent.
Signed
A.Ithuku
Chairman
Mr. Sumba- After we left the Tribunal we received letter that the cows had been sold. This was after it was concluded that the debt was paid. I pray that our Application be marked as spent. I will then seek leave to amend and statement of claim. Our Application is not opposed. We served.
Signed
A.Ithuku
Chairman
Mr. Mugambi- I am not aware of the facts of sale. The application for amendment is not opposed.
Signed
A.Ithuku
Chairman
Order- The Application dated 25. 9.2017 is marked as spent. The one dated 27. 10. 2017 is hereby allowed. Parties to proceed accordingly.
Signed
A.Ithuku
Chairman
10. 1.18
A.Ithuku - Chairman
R. Mwambura - Member
H. Shidiye - Member
R. Leweri - Court Interpreter
Claimant absent
Respondent absent
Order- Matter stood over general. Parties absent.
Signed
A.Ithuku
Chairman
22. 1.2018
Clerk to N. Osumba & Company Advocate for plaintiff
Clerk to Ouma Onyango advocate for Respondent
By consent hearing fixed for 3. 4.2018 at 9. 00a.m.
Signed
Eliza Tribunal clerk
3. 4.2018
A.Ithuku - Chairman
F.F.Odhiambo - Member
P.Swanya - Member
C. Maina - Court Interpreter
Mr. Sumba- I am for claimant.
Mr. Muriuki- I am holding brief for Onyango for Respondent. He is ready to proceed.
Signed
A.Ithuku
Chairman
Order- to proceed at 11. 30a.m.
Signed
A.Ithuku
Chairman
3. 4.2018
At 12. 15p.m
Coram as above
Mr. Sumba- I am ready.
CW1 ADULT FEMALE SWORN AND STATES AS FOLLOWS
I am CAROLYN OTIENO. I am the claimant. I joined the 1st Respondent in 2013. I recorded a statement. Its dated 25. 6.2017. I wish to adopt it as my evidence.
In August 2017, I decided to terminate my membership. I had taken a loan in the sum of Kshs.30,080/- this was in 2016. I finalized repaying in August 2017.
On 23. 8.17 at around 7. 00a.m a lorry came accompanied by AP Officers. They claimed that they had been sent by the 1st Respondent. They left me with a document reading Caroline Adhiambo. They took away my two cows.
I went to the society. They asked for Kshs.10,000/=. They have not returned my livestock. The documents attached show that I had cleared my loan. The documents filed on 23. 9.17 are produced as exhibits 6.
I am asking that the Respondent be ordered to pay me Kshs.100,000/= as the value of the cows. I also pray for costs.
Signed
A.Ithuku
Chairman
3. 4.2018
CROSS EXAMINED BY MR. ONYANGO-
I joined the 1st Respondent in 2013.
It was registered as a Sacco in 2015. The minutes referred to by the claimant are not signed.
On 28. 8.2017. I paid Kshs.5091/= . The balance was to be offset from my savings.
Witness referred to voucher dated 25. 9.17. Its for Kshs.14,300/=. There is another one for Kshs.2100/= and 1419/=.
The voucher are not accurate. My cows were not grade cows. They were mature cows.
Signed
A.Ithuku
Chairman
3. 4.2018
RE EXAMINATED BY MR. SUMBA
The last payment was on 28. 8.17.
It was Kshs.5091/-. It was the final payment. The other vouchers are fraudulent.
Signed
A.Ithuku
Chairman
3. 4.18
CW1 ADULT MALE SWORN AND STATES AS FOLLOWS
I am KEVIN OTIENO. I am a member of the 1st Respondent. I know the claimant. I had guaranteed her to take a loan. She repaid the loan. I was not notified of any default. In July 2017 she asked to leave the society. She was told that the amount owing was Kshs.19,000/= she paid Kshs.5091/= in cash. The balance was paid from her shares.
I am aware that they took her cows. I went to her home when auctioneers were taking the animals. When we tried to follow up the society said that the sale was by mistake.
Signed
A.Ithuku
Chairman
CROSS EXAMINED BY MR. ONYANGO
The Claimant is my wife.
Security was a bull. The value given for the bull was Kshs.30,000/=.
The 2nd Respondent said that they had been sent by the 1st Respondent. I talked to the chairman of the 1st Respondent. He confirmed that claimant had paid off the claim.
Signed
A.Ithuku
Chairman
3. 4.18
RE EXAMINED BY MR. SUMBA
The proclamation notice had the name of CAROLYNE ADHIAMBO.
Signed
A.Ithuku
Chairman
Mr. Sumba- I pray for adjournment. I need to call a valuer.
Signed
A.Ithuku
Chairman
Mr. Onyango- No objection
Signed
A.Ithuku
Chairman
Court- Matter adjourned. Hearing on 21. 6.18.
Signed
A.Ithuku
Chairman
13. 4.2018.
21. 6.2018
A.Ithuku - Chairman
R. Leweri - Court Interpreter
Claimant absent
Respondent absent
Order- Matter stood over general. Parties absent.
Signed
A.Ithuku
Chairman
21. 6.2018.
28. 6.2018
Michele for N. Osumba company advocate for plaintiff
Hearing fixed exparte for 6. 9.2018 at 9a.m.
Plaintiff to apply for hearing notice to Respondent
Signed
Mosop Tribunal clerk
6. 9.2018
C. Kithinji - Deputy Chairman
N. Kitiwa - Member
P.Swanya - Member
R. Leweri - Court Interpreter
Mr. Sumba- I am for the claimant.
Mr. Mwangi- I am holding brief for Mr. Onyango for Respondent.
Mr. Sumba- I am ready to proceed.
Signed
C. Kithinji
Deputy Chairman
Mr. Mwangi- Mr. Onyango is not ready to proceed. He instructed and requested an adjournment.
Signed
C. Kithinji
Deputy Chairman
Mr. Mwangi holding brief for Fatuma for 2nd Respondent. She request an adjournment as she is engaged in a matter at Kimilili Law Court civil No.46/14 under certificate of urgency.
Signed
C. Kithinji
Deputy Chairman
Mr. Sumba- I was ready to proceed. They can be indulged subject to today’s costs being paid before next hearing at Kshs.3000/= for me and my witness at Kshs.3000/=.
Signed
C. Kithinji
Deputy Chairman
Order- Hearing adjourned to 6. 11. 2018. Today’s costs assessed at Kshs.6000/= as indicated be paid by 1st Respondent.
Signed
C. Kithinji
Deputy Chairman
6. 9.2018.
6. 11. 2018
C. Kithinji - Chairman
F.F. Odhiambo - Member
P.Swanya - Member
R. Leweri - Court Interpreter
Ms. Obuori holding brief for Onyango for 1st Respondent.
Mr. Sumba for claimant.
Signed
C. Kithinji
Deputy Chairman
Mr. Obuori- I am for Onyango requests for the allocation.
Signed
C. Kithinji
Deputy Chairman
Mr. Sumba- We find an Application dated 7. 9.2018. It was served on 10. 9.2018 we are seeking to amend the claim. As the subject of matter was disposed off. We request orders as prayed. The application is not opposed.
Signed
C. Kithinji
Deputy Chairman
Order- hearing of application to amend on 22. 11. 2018.
Signed
C. Kithinji
Deputy Chairman
6. 11. 2010.
22. 11. 2018
C. Kithinji - Chairman
F.F. Odhiambo - Member
P.Swanya - Member
C. Maina - Court Interpreter
Mr. Gichohi holding brief for Sumba for the Claimant.
Mr. Amadi holding brief for Onyango for 1st Respondent.
Mr. Gichohi- Application for leave to amend is coming up. Mr. Sumba is held up in 243/2018 Court of Appeal Nairobi. He requests matter be placed aside to 11a.m.
Mr. Amadi- Mr. Onyango had the impression that matter was for mention. Parties can proceed by way of written submissions.
Signed
C. Kithinji
Deputy Chairman
Order- To file submissions within 14 days each. Ruling on 7. 9.2019.
Signed
C. Kithinji
Deputy Chairman
22. 11. 2018.
7. 1.19
RULING
23. 4.2019
Abraham for Sumba and company advocate for plaintiff
Hearing fixed exparte for 8. 7.17 at 9a.m
Plaintiff to apply for hearing notice to serve the Respondents.
Signed
Tribunal clerk
8. 7.2019
Abraham for Sumba and company advocate for plaintiff
Hearing fixed exparte for 1. 10. 19 at 9a.m
Plaintiff to apply for hearing notice to serve the Respondents.
Signed
Tribunal clerk
01. 10. 2019
Hon. B. Kimemia - Chairman
R. Mwambura - Member
P.Swanya - Member
C. Maina - Court Interpreter
Nyaga holding brief for Otsyula for the Respondent.
Sumba Advocate for Claimant- Matter is for hearing, it’s part heard, I have one witness veterinary officer doctor, ready to proceed. Nyaga Advocate: He prays for adjournment because – he prays for time to comply after amended claim was filed. He could not comply because the chair is indisposed and not able to give instructions. He will be missing his witness. He prays for another date and leave as he waits for instructions.
Amended claim was filed on 25. 3. 2019. The chairman has been in and out of hospital and we have no treatment records.
Sumba Advocate – I oppose the application. The amended claim was filed and served 6 months ago. The cows were ordered released, they were in contempt.
The amendment were occasioned by their contempt. The matter is just for compensation for the illegality. We paid the doctor Kshs.15000/= to attend.
On 6. 9.2018, there was a doctor present and similar application made, the costs have never been made. They should have no audience today till payment. Bearing in mind the matter, I am not ready to have any adjournment since there is no reasonable explanation. There are many officials who can file or give instructions.
Ng’ang’a Advocate- The input is critical of the chair. Pursuant to article 159 and 151 constitution, he prays for time to reply to the amended claim and for the chair to be given time to respond. I am not sufficiently instructed to proceed.
Ruling on adjournment at 12. 15p.m
Signed
Hon. B. Kimemia
Chairman
1. 10. 2019
RULING
We have carefully considered the submission of the parties and note that the main reason for request for adjournment was because they have not replied to the amended claim filed on 25. 3.2019, that is over 6 month ago.
We have not been informed of the whereabouts of the Respondent’s advocate Mr. Otsuila.
We have not been provided with the medical reports of the said Chairman or the names of the said Chairman and we note that he is not the only office bearer for the Sacco (1st Respondent )
We have not been told whether this illness is so critical such that the Chairman cannot give instructions or append any signatures.
This date was fixed on 8. 7.2019, there was no notice issued to the Claimant’s advocate not to avail their witnesses today.
We also note that the hearing notice for today’s date was served on 31. 7.2019 and there was no protest registered therein as per Affidavit of Service filed on 2. 8.2019.
In totality, there is no reasonable explanation given why the Respondent should be granted another adjournment noting that this matter was filed in September 2017, the amended claim filed over 6 months ago. Equity aids the vigilant and in the circumstances, the Respondent has been sleeping on his rights and we note that this is calculated to delay this matter.
We therefore under the circumstances deny the Application for adjournment and order for the matter to proceed with the Claimant’s witness who is a doctor.
Hon. B. Kimemia Chairman Signed 1. 10. 2019
R. Mwambura Member Signed 1. 10. 2019
P. Swanya Member Signed 1. 10. 2019
1. 00p.m
No appearance for 1st Respondent
CW3 ADULT MALE CHRISTIAN SWORN IN ENGLISH STATES IN ENGLISH- DR. JOSEPH MUGACHIA CHEGE
I am a Vetinary Surgeon, Bachelors Vetinary Medicine and Master of Vetinary Medicine University of Nairobi. I am practicing at Garden Vetinary Services Runda on Kiambu Road. I am duly licensed – license No. 880.
Valuation report 6. 9.18(filed) by Dr. Rebecca Wanga I was requested to present it by Dr. Wanga who has now relocated to Turkana.
Licence No. Dr. Rebecca No. 2459 issued by Vertinary Board.
She was to evaluate the 2 cows attached and disposed off in this matter. I wish to present the same, I agree with the contents of the report.
2 cows –cow 1 – female 4 years old pregnant at 5 months, yielding 8 litres milk per day, valued at 60,000/= taking into account the milk yield and pregnancy. Cow 2- female, 4 years old producing 10 litres milk per day, was in good conditions and had 1 ½ month old calf. Claimant was earning 700 per day total value of calf and mother Kshs.65000/= total value of 2 cows plus calf Kshs.125,000/=.
I wish to produce the report – claimants list of documents dated 25. 9.17 plus further list dated 18. 10. 17.
Valuation report dated 6. 9.18- filed exhibit 3
Receipt for kshs.8000/= exhibit 3a.
My attendance today kshs.15000/= exhibit 3b.
Copy of license and identity card exhibit 3d and c respectively.
Doctor Wanga is a colleague I have known her for 2 years and instructed me to produce it on her behalf.
That is all.
Mr. Sumba Advocate – I wish to amend the amended claim to include the attendance but I wish to close my case.
Defence hearing on 21. 1.2020.
Notice to issue
Respondents granted leave to file and serve their response to amended claim within 14 days herein.
Signed
Hon. B. Kimemia
Chairman
1. 10. 2019
21. 1.2020
Hon. B. Kimemia - Chairman
Hon. F. Terer - Deputy Chairman
R. Mwambura - Member
C. Maina - Court Interpreter
Suba Advocate for Claimant
Osuna Advocate for Respondent
Suba Advocate - Matter is for defence hearing. We are both ready.
Order- Matter to proceed at 2p.m.
Signed
Hon. B. Kimemia
Chairman
21. 1.2020
Defence case
Sumba Advocate - claim dated 25. 3.18, we pray to amend due to receipt of Kshs.15,000/= to make paragraph 7 instead of Kshs..8000/= to read kshs.23,000/=. Prayer b – kshs.148000/=
Otsyula Osuna Advocate - I confirm the amendment, it can be allowed
Order- oral amendment allowed by consent of parties.
Amended Plaint duly further amended as above.
Hon. F. Terer Deputy Chairman Signed
R. Mwambura Member Signed
Hon. B. Kimemia Chairman Signed 21. 1.2020
Sumba advocate – The Respondent paid Kshs.6000/= as ordered on 19. 10. 17.
Defence case
RESPONDENT WITNESS 1 ADULT MALE CHRISTIAN SWORN IN ENGLISH STATES IN ENGLISH
DAMIAN OKONYA OTIGO Chairman Luhano FSA Sacco I know the claimant CAROLINE ACHIENG Member No. 0182 from Kazi Bidii Muingano. She applied for Kshs.50,000/= loan and was given Ksh.30,000/= on 26. 3.2016 loan application form and she offered 2 cows as security for the loan. Kevin her spouse was the main guarantor.
CS 17611 is the society registration certificate list of documents filed on 18. 10. 17 produced as exhibit 1,2,3e.
She was not paying regularly and fell into arrears. She was to service monthly in their group then the same to be remitted.
She was to pay in 16 installments. At the time of default, she was to pay Kshs.37,925/=. We followed up and on 17. 7.17 she was issued notice for the amount. Thereafter the auctioneers Benwell attached her cows. The animals were auctioned and she paid on 25. 9.17 Kshs.14300/= and Kshs.1419/= and Kshs.2100/= through Link bank. The loan was cleared after the animals had been auctioned 25. 9.17 as per the pass book (exhibit 1). The case was filed the same date she cleared her payment. The items were attached before she cleared her loan and after auction of the cows. I pray that the case be dismissed with costs. She came to court as an afterthought after the auctioneers had sold the property.
That is all.
CROSS EXAMINED BY SUMBA ADVOCATE FOR CLAIMANT
I am not aware Benwell was removed, he was our agent. We did not communicate with the claimant on phone or any Advocate. The attachment was not by a mistake. I did not state it was a mistake previously.
She stagnating in payments she was in default, arrears was Kshs.37925/- upto 25. 9.2019. Her payments were not regular.
The amount was fully paid kshs.14300+1419+2100 on 25. 9.17.
The loan was not cleared the day she remitted the money. The auction money cleared the loan.
I am not aware she had earlier paid and receipts are for 25th September. She had savings of Kshs....
The savings are still there, she wrote withdrawal letter.
On 25. 8.2017, I am not aware she left the Sacco.
I am not aware that the cows were ordered to be released on 18. 10. 2017.
I am not aware of the injunction of 25. 9.2017.
The documents were stamped by ourselves on receipt.
On 17. 7.2017, the letter of instruction was issued.
On 23. 9.2017 the auctioneers went for the attachment.
I am not aware there was no proclamation.
Affidavit of 18. 9.2018 paragraph 8
“.........various proclamations were issued........”
Page 2 list of documents - Caroline Otieno Affidavit ......
Kazi na bidii were the first guarantors. We tried to pursue them and it bore no fruits.
Repayments were through kazi na bidii.
Minutes list of Claimants completion of loan on 25. 8.2017.
The cows were sold, I am not aware they advertised.
That is all.
RE EXAMINATION
The amounts in the minutes are not the same amounts we received.
The loan was cleared on 25. 9.2017.
That is all.
Otsyula Advocate – That’s the close of the Respondent’s case.
Sumba Advocate for Claimant – We can file and serve written submission within 10 days and the Respondent within 10 days of service, we pray for mention date.
Order- The Claimant to file and serve written submission within 10 days herein and Respondent to file and serve written submission within 10 days of service.
Mention for compliance and to fix Judgment date by consent 28. 2.2020.
Signed
Hon. B. Kimemia
Chairman
21. 1.2020
30. 1.2020
Claimant’s written submissions dated 30. 1.2020. Drawn and filed by N.O. Sumba and Company Advocate.
19. 2.2020
Respondent’s written submissions dated 17. 2.20. Drawn and filed by J.B.Otsyula and Associates.
28. 2.2020
Hon. B. Kimemia - Chairman
Hon. F. Terer - Deputy Chairman
R. Mwambura - Member
Margaret N. - Court Interpreter
Sumba Advocate for Claimant
Otsyula for Respondent
Sumba Advocate - We filed written submission. We pray for a Judgment date.
Order- Proceedings to be typed urgently.
Further mention - 20. 3.2020 to fix a judgment date.
Signed
Hon. B. Kimemia
Chairman
28. 2.2020.