[2023] KECPT 811 (KLR)
The tribunal found that the respondents failed to file written submissions, did not provide evidence of repayment, and effectively admitted the debt through a consent proposal. The respondents' defence was a mere denial without substance. The tribunal held that there was no triable issue and that the claimant was...
Source-derived case information.
- Citation
- [2023] KECPT 811 (KLR)
- Parties
- Applicant: Eastleigh Route Sacco Limited; Respondent: Anthony Mburugu; Respondent: Kennedy Kigame
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 15 of 2021
- Procedural Posture
- Civil Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
- Outcome
- summary judgment for claimant; defence struck out
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Loan Recovery, Summary Judgment, Striking Out Defence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eastleigh Route Sacco Limited
Applicant
Anthony Mburugu
Respondent
Kennedy Kigame
Respondent
Procedural Posture
Civil Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
Legal Issues
- 1 Whether the respondents are indebted to the claimant for the outstanding loan amount as claimed.
- 2 Whether the respondents' defence should be struck out for failure to comply with tribunal orders and lack of substantive defence.
- 3 Whether summary judgment should be entered in favour of the claimant for the amount claimed.
Ratio Decidendi
The tribunal found that the respondents failed to file written submissions, did not provide evidence of repayment, and effectively admitted the debt through a consent proposal. The respondents' defence was a mere denial without substance. The tribunal held that there was no triable issue and that the claimant was entitled to summary judgment for the amount claimed, together with costs and interest. The respondents' defence was struck out, and judgment was entered as prayed in the statement of claim.
Court Disposition
summary judgment for claimant; defence struck out
Orders
- The claimant's application dated 17.12.2020 is allowed.
- The respondents' statement of defence dated 8th February 2021 is struck out.
Full Case Text
Judgment text and source record
32 paragraphs
Eastleigh Route Sacco Limited v Mburugu & another (Tribunal Case 15 of 2021) [2023] KECPT 811 (KLR) (Civ) (3 August 2023) (Ruling)
Neutral citation: [2023] KECPT 811 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 15 of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 3, 2023
Between
Eastleigh Route Sacco Limited
Claimant
and
Anthony Mburugu
1st Respondent
Kennedy Kigame
2nd Respondent
Ruling
1. The Respondents; Mr. Anthony Mburugu and Mr.Kennedy Kigame are members of Eastleigh Route Sacco Limited who are the Claimants in this case.
2. Both of the Respondents applied for loans from the Claimant vide Loan Application and Agreement Forms dated 21st September 2012 and 26th October 2012.
3. According to the Loan Application and Agreement Forms, the first loan was to be repaid within a period of five (5) months while the second loan was to be paid within twelve (12)months.
Claim 4. A Statement of Claim dated 17. 12. 2020 was filed on 21. 1.2021 by the Claimant seeking for the following:i.Payment of outstanding amount of Kshs. 226,309/=ii.Costs of the claimiii.Interest on (i) and (ii) at the Court’s rates until payment is made in full.iv.Any other relief that the Honourable Tribunal deems just and fit to grant.
5. To back up the claim, the Claimant filed the Loan Application and Agreement Form dated 21st September, 2012 and 26th October, 2012. Further, the Loan Statement for the Respondents from 1st January 2012 to 30th December 2020 and their Loan Summary Account dated 30th November, 2020 was filed.
Respondent’s Defence 6. The Respondents entered appearance and filed their Defence dated 8th February 2021 and denied all the claims.
7. Stung by the contents of the Respondent’s Defence, the Counsel for the Claimant filed a Notice of Motion Application dated 30th May 2022 and sought for the following orders:i.That the Respondent’s Statement of Defence dated 8th February 2021 be struck out.ii.That this Honourable court be pleased to enter summary judgment for the Claimant/Applicant against the Respondents herein as prayed in the Statement of Claim plus costs and interest thereof.iii.That the Defendants/Respondents do pay the costs of this Application.iv.That this Honourable court be pleased to issue any other relief that it may deem fit to grant.
8. On its part, the Tribunal issued an order dated 21st June 2022 in which the Respondent was given 14 days to respond to the Notice of Motion Application dated 30. 5.2022 after being served by the Claimant’s Counsel.
9. The Respondent did not comply with the orders.
10. In the quest to render fair hearings to both the Claimant and the Respondent, the Tribunal at the mention date of 21. 6.2022 ordered the parties to file Written Submissions and granted 14 days to the Claimant to file and serve the Respondent and granted 14 days to the Respondent to file and serve.
11. The Claimants filed their Written Submissions dated 30th November, 2022 while the Respondents did not file any Written Submissions.
Analysis 12. In the absence of Written Submissions from the Respondents and any evidence of payment of the loan this Tribunal is left with no other option other than to make a decision based on the oral evidence of Anthony Mburugu on 17. 4.2023 where he stated:“I do not have details of the case, I had given a payment plan.”
13. Further, in the Claimant’s Written Submissions it is stated at paragraph 3 on page 2 that the Respondent’s advocate had reached out to the Claimant with a consent proposal where a sum of Kshs. 226,309/= was admitted.
14. The Tribunal has considered the Claimants claim dated 17. 12. 2020 the Respondent’s Defence dated 8. 2.2021 the Claimant’s Notice of Motion Application dated 30. 5.2022 and the Claimant’s Written Submissions dated 30. 11. 2022 and order as follows:i.The Claimant’s Application dated 17. 12. 2020 is allowed.ii.That the Respondents Statement of Defence dated 8th February 2021 is hereby struck out.iii.That this Honourable court is pleased to enter summary judgment for the Claimant/Applicant against the Respondents herein as prayed in the statement of claim plus costs and interest thereof for Kshs. 226,309/=.iv.That the Defendants/Respondents do pay the costs of this Application jointly and severally.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 3. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 3. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 8.2023HON. PAUL AOL MEMBER SIGNED 3. 8.2023TRIBUNAL CLERK JEMIMAHMiss Auga for Claimant/ApplicantNo appearance