[2024] KECPT 253 (KLR)

Daima Sacco Ltd v Njeru (Tribunal Case 386 of 2012) [2024] KECPT 253 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 253 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 386 of 2012

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

March 7, 2024

Between

Daima Sacco Ltd

Claimant

and

Gerishon Njeru

Respondent

Ruling

1. This Ruling dispenses with the Respondent’s Notice of Motion Applications one dated 18th March 2022, supported by an Affidavit sworn by the Respondent, Gerishon Njue, and brought under Sections 1A, 1B and 1a of the Civil Procedure Act, Order 9 Rule 9, Order 21 Rule 12, Order 22 Rule 34 and Order 51 Rule 1 of the Civil Procedure Rules as amended in 2020, (Cap 21 of the Laws of Kenya). The Application seeks the following orders:a.That this Application be certified as urgent and service be dispensed with in the first instance.b.That the Honourable Tribunal be pleased to allow the firm of Kinyanjui Kirimi and Company Advocates to come on record for the Respondent in place of Gachie Mwanza and Company Advocates.c.That the Honourable Tribunal be pleased to grant stay of execution of the decree of this Tribunal issued on 25th March 2015, pending the hearing and determination of the Application interparties.d.That pending the hearing and determination of the Application interparties, the Honourable Tribunal be pleased to allow the Applicant to settle the balance of the decretal sum by way of monthly instalments of Kshs. 27,000/=.e.That the Honourable Tribunal be pleased to grant stay of execution of the decree of this Tribunal issued on 25th March 2015. f.That the Honourable Tribunal be pleased to allow the Applicant to settle the balance of the decretal sum by way of monthly instalments of Kshs.27,000/=.g.That costs of this Application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The matter has been slated for Notice to Show Cause why execution should not issue against the Applicant, yet the Applicant has not been having representation. That the Applicant is indisposed and is committed to paying a monthly instalment of Kshs. 27,000/- every month and that the Sacco has not refused this proposal.

3. The background of the matter is that the Claimants brought this case against the Respondent via Statement of Claim dated 6th September 2012 claiming a liquidated sum of Kshs. 1,300,672. 49/= being the defaulted loan arrears and interests on a loan that the Claimant had advanced to the Respondent. Just before the hearing, on 25th March 2015, the parties recorded in which they agreed that judgement be entered in favour of the Claimant as against the Respondent for Kshs. 1,484,798. 80/- among other terms.

4. Before this Application was canvassed, on 20th July 2022, the Respondent’s advocate informed the court that the Respondent had passed away, but nothing has been filed by either party in support or in opposition.

5. The Claimants filed submissions, but the Respondent did not.

6. In their submissions, the Claimant sought to answer the question on whether consent can be set aside or varied, and whether the Applicant can be allowed the prayers sought. The Claimant’s position was that there is a consent on record that was entered into by both the parties on 25th March 2015. The Claimant submits that the consent has not been set aside or varied.

7. The question before this Tribunal is whether the Applicant herein is whether the Applicant is entitled to the prayers sought. It is not in dispute that the Applicant was a member of the Respondent, and that he was advanced a loan and failed to clear the same. It is also not in dispute that a consent was recorded to dispose of the claim, and that the same was adopted as an order of the court. The question that this Tribunal hereby asks itself, is whether the consent can be varied to allow the Applicant to settle the money by way of monthly instalments, thereby staying the execution of the Decree of this Tribunal dated 25th March 2015. In Kenya Commercial Bank Ltd v. Specialized Engineering Co. Ltd (1982) KLR P. 485 the court held that:“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the Court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the Court to set aside an Agreement.”Further in Flora Wasike v. Destimo Wamboko (1982 -1988)1 KAR 625, it was held as follows:"It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out."Flowing from above, it is clear that consent can only be set aside on the basis of fraud, collusion, illegality, and mistake. In other words, the applicant must show that he did not intend to enter into the consent. In this case, the applicant has produced nothing to show that he did not consent to what was recorded in the consent, or even that he wants the consent set aside. There is no evidence for that in record and neither has the Applicant applied to set aside or vary the consent.

8. The Applicant’s prayer to stay the execution of a Decree that flows from a consent that he willingly entered and that has not be set aside or varied is not tenable. The consent was entered into in 2015, and the Application has been brought in 2022.

9. For the Applicant’s prayer to be allowed to pay in installments, this court takes references from the case of In the case of Tarpo Industries Ltd vs Picasso Products Limited the Court held that:-“the Judgment Debtor’s bond fides (good faith) is the most important consideration when the Court considers whether some indulgence can be fairly given to the Judgment Debtor without unreasonably prejudicing the Decree-Holder.”Further in the case of Lavington Security Limited vs Nairobi City Water & Sewerage Co. Ltd (2014) eKLR, the Court defined what amounts to “sufficient cause” to include: the debtor is unable to pay lump sum, the debtor can pay by reasonable monthly installments and the Application is made in utmost good faith.The Applicant has requested to be allowed to pay in installments. The Applicant contends that he has paid a total of Kshs. 750,000/- so far, and that he is aged and sickly. The Applicant has attached medical documentation to his Application, and this court is inclined to believe that they are genuine.

10. Flowing from above, the final orders are that:a.Prayer 5 on stay of execution is deniedb.Prayer 6 is allowed. The Judgment Debtor is allowed to settle the balance of the decretal sum by way of monthly installments.c.The judgement creditor granted the costs of this Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk - JemimahNo appearance by parties.Ruling delivered.HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024