[2023] KECPT 1047 (KLR)

Chege v Ekeza Savings and Credit Cooperative Society Limited & another (Tribunal Case 409 of 2020) [2023] KECPT 1047 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1047 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 409 of 2020

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

November 30, 2023

Between

George Njoroge Chege

Claimant

and

Ekeza Savings and Credit Cooperative Society Limited

1st Respondent

Elan Traders Auctioneers

2nd Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 19th October 2020 in which the Claimant claims that he was a member of the Respondent. In 2017, the Claimant claims that he borrowed a loan of Kshs. 1,250,000/= from the claimant using his motor vehicles log book as security. He claims he repaid the loan as required until December 2017 when the government shut down the operations of the Respondent and he did not know where else to pay the loan as the Respondent did not communicate an alternative payment method. It was only when his motor vehicle registration number KBX 224 was impounded by the 2nd Respondent that the Claimant knew that the Respondents were back. The claimant therefore prays fora.An order for permanent injunction restraining respondents, their agents, employees, servants or any other person(s) whether acting on their own behalf or on the Respondent’s behalf from auctioning the Claimant’s motor vehicle registration number KBX 224J.b.Special damages in the said sum of Kshs. 180,000/=c.General damages for illegal and wrongful impounding motor vehicle registration number KBX 224J.d.Interest on b and c above.e.Cost of this suit.f.Any other relief this Honourable court may deem fit and just to grant.The Claim is accompanied by a Witness Statement and documents in support of the claim.

2. The Respondent filed a Replying Affidavit dated 17th November and filed on 23rd November. In their reply, the Respondents admit that the Claimant was its member and had taken a loan secured by the log book of his motor vehicle. The Respondents however, claim that when the Claimant defaulted, they sent a notice of proclamation in the way of a demand letter to them. They pray this court to dismiss the Claimants claim.

3. During the hearing, only the Claimant testified. The Respondent did not appear during the hearing. The Claimant adopted his witness statement, and produced his documents. The Claimant admitted that indeed he had a loan secured by the log book to his motor vehicle. However, he testified that he did not refuse to repay the same, but the 1st Respondent’s offices were closed and he did not know where to pay the money to. The Claimant testified that he has a loan balance of Kshs. 874,400/= and savings of Kshs. 432,400/=. He claims that as a result of his vehicle being impounded, he lost income and that he used to make Kshs. 3,000/= per day. It’s the claimant’s testimony that when the vehicle was released as a result of an order of the Tribunal, it could not move and the Claimant has never used it. The Claimant’s prayers were for loss of user of the motor vehicle and that the cost of repair of the motor vehicle which the Claimant estimates it to be equal to his net loan balance.

4. Only the Claimant filed his submissions. In his submissions, the claimant points out that that the motor vehicle was indeed in good condition at the time it was impounded since it was impounded on the road, but could not even start at the time of release. The Claimant submitted that the right procedure was not followed before impounding the motor vehicle and also that the Respondent is not keen on defending his case since he neither filed a Statement of Defence and neither did they testify during the hearing.

Analysis 5. The question before this Tribunal is whether the Claimant is entitled to the prayers sought in his Statement of Claim as against the Respondent. In answering this question, the Tribunal notes that it is not in dispute that the Claimant was a member of the Respondent. It is also not in dispute that he borrowed a loan, repaid the same but did not complete paying the same. Further it is not in dispute that the motor vehicle registration number KBX 224J was used as collateral, impounded and later released via an order of this court. The question before this court whether all legal procedures were followed before the impounding, and whether this court can award damages to the Claimant. The Respondent did not testify in this matter and therefore the Claimant’s evidence that the motor vehicle got spoilt while being impounded and held is not controverted.

6. On the first prayer of injunction, this court relies on the case of Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR where it was held inter alia as follows:“.... A permanent injunction which is also known as perpetual injunction is granted upon the hearing of the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.”The subject motor vehicle can only be auctioned to cover the loans in which the motor vehicle was given up to secure. The question, therefore, before this tribunal is whether the subject loan has been fully settled to warrant us to forbid the Respondent from ever auctioning the motor vehicle on the loan again. The answer to this question is in the Claimant’s pleadings and testimony. He is still indebted to the Respondent and he prays this court to order that his debt to the SACCO be settled with the repair costs of the motor vehicle. This Tribunal can not do that because as much it was not controverted that the motor vehicle got spoilt in the process of attaching and holding it, there is no invoice estimating the repair charges, and even if there were, it would be difficult to apportion the damage that occurred during impounding and holding of the motor vehicle. We cannot therefore grant a permanent injunction where there is still a loan account to be settled between the Respondents and the Claimants. The settling of such an account discharges the motor vehicle as the security.

7. The second question before this Tribunal is on the damages that the Claimant has sought. On special damages, its trite law that special damages must not only be pleaded, but proven. The Claimant did not produce any evidence that show that he gets Kshs. 3,000/= per day from his motor vehicle. This prayer therefore fails.

8. The general damages prayed are pegged on the alleged illegal and wrongful impounding of the motor vehicle. It was settled in the ruling issued by this Honourable Tribunal on 19th August 2021 that the procedure of impoundment was proper, and therefore this prayer fails as well.

9. The upshot of the above is that the Claimant’s claim is dismissed with no order as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON - SIGNED 30. 11. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED 30. 11. 2023HON. BEATRICE SAWE - MEMBER - SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA - MEMBER - SIGNED 30. 11. 2023HON. PHILIP GICHUKI - MEMBER - SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW - MEMBER - SIGNED 30. 11. 2023HON. PAUL AOL - MEMBER - SIGNED 30. 11. 2023Tribunal Clerk - JonahNo apperance by partiesJudgement delivered in absence of partiesHON. J. MWATSAMA - DEPUTY CHAIRPERSON - SIGNED 30. 11. 2023