[2021] KECPT 592 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.748 OF 2019

ELISHA MBOGO NTHIGA.............................................................CLAIMANT

VERSUS

UNITED NATIONS SACCO SOCIETY LIMITED................ RESPONDENT

RULING

Vide the Application dated 11. 12. 2019, the Claimant has moved this Tribunal seeking for Orders inter alia:

1. That this Honourable court be pleased to certify this application as urgent and service thereof be dispensed within the 1st instance;

2. That this Honorable Tribunal be pleased to issue a temporary order restraining the Respondents, agents, servants and/or any other person claiming through it from attaching shares, attaching salaries, harassing, and/or in interfering with Claimant’s guarantors pending hearing and determination of this Application ;

3. That this Honorable Tribunal be pleased to issue a permanent injunction order restraining the Respondents, agents, servants and/or any other person claiming through it from attaching shares, attaching salaries, harassing, and/or in interfering with Claimant’s guarantors pending hearing and determination of this suit ;

4. That cost of this Application be provided for.

The Application is supported by the grounds on its face and the Affidavit sworn by the Claimant on 11. 12. 2019.

The Respondent has opposed the Application vide the Replying Affidavit sworn by Moses Amolo on 20. 2.2020.

Vide the directions given on 14. 10. 2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions on 12. 11. 2020 while the Respondent did so on 9. 12. 2020.

Claimant’s Contention

Vide the instant Application, the Claimant contend that the Respondent has issued a Notice to attach the deposits of his guarantors yet he is still servicing his loan. That the Respondent’s actions are uncalled for, unconstitutional and malicious. That he has not defaulted in repaying his loan.

Respondent’s case

The Respondent has opposed the Application on grounds that the Claimant has defaulted in repayment of a loan of Kshs.4,950,000/= advanced to him. That he defaulted in repaying the said loan in May, 2014. That he was required to pay a monthly installment of Kshs.95,518. 95. That however, he alleged to pay what suited him. That several notices were issued to him to regularize his account to no avail. That the instant application has been overtaken by events since, the Respondent on 20. 12. 2019 recovered the balance of his loan (Kshs.1,830,215. 77/- from his guarantors.)

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis to warrant the grant of an order of temporary injunction;

b. Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

(a) A prima facie case with a probability of success;

(b) Irreparable damage; and

(c) Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Facie case in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

From the holding of the court in the Mraos case above, it is trite that for a party to establish existence of a prima facie case he/she should establish existence of a right which has been infringed by the other side so as to call for a rebuttal. With this in mind, we ask whether the Claimant has satisfied this condition. It is his case that the Respondent has threatened to recover his outstanding loan from his guarantors yet his loan is performing. On the other hand, the Respondent contend that the Claimant defaulted in repayment of his loan thus prompting it to recover the same from his guarantors. That by the time the instant claim was filed, it had already recovered the outstanding loan from the guarantors.

We have perused the Claimant’s loan statement annexed to the Replying Affidavit of Moses Amolo and marked a MA3. We note that a sum of Kshs.4,950,000/= was credited to the Claimant’s account on 18. 4.2013. That the monthly repayment was Kshs.95,518. 95. That the Claimant repaid the said monthly installment until 18. 10. 19 when the same reduced to Kshs.85,000/=. That this figure progressly came down and at one point, that is, 30. 11. 2018, the repayment was Kshs.30,000/=. What this mean is that the Claimant was not repaying the loan as per the terms of the contract.

We have also perused annexture MA6. They are correspondences from the Respondent informing the public that the Claimant’s guarantors had been pursued to recover the loan. The letters are dated 24. 12. 19.

We have also perused the pertinent part of the Claimant’s loan statement and note that the said loan was recovered from the guarantors on 20. 12. 2019. The instant claim was filed on 11. 12. 2019 and no stay orders were granted. We thus agree with the Respondent that the same has been overtaken by events since the said funds had already been recovered from the guarantors.

Needless to say that even if the said sum had not been recovered, we find that the Claimant has not established a proper basis to warrant the grant of the orders sought. The material placed before us show that he defaulted in repayment of the loan.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s Application dated 11. 12. 2019 and hereby dismiss it with costs.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 25TH DAY OF MARCH, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021

HON. JANE MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 3.2021

MR. P. GICHUKI MEMBER SIGNED 25. 3.2021

Wachira Advocate for Respondent present

HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 3.2021