https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/265

Energy Requlated Non-WDT SACCO Ltd v Maina (Tribunal Case 325/E 412 of 2023) [2026] KECOPT 265 (KLR) (Civ) (15 June 2026) (Judgment) Neutral citation: [2026] KECOPT 265 (KLR) Republic of Kenya In the Cooperative Tribunal Civil Tribunal Case 325/E 412 of 2023 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 15, 2026 Between Energy Requlated Non-WDT SACCO Ltd Claimant and Monica Wanjiru Maina Respondent Judgment Facts About The Claim 1.The Respondent became a member of the Claimant on 12th March 2018 she applied and was advance a loan of Ksh.300,000/=. Further, she applied and was granted a second Loan of Ksh.1,800,000/= on 4th December 2019 in addition to some emergency mobile loans that she applied and received a total of Ksh.100,000/=.That on the same date of 4th December 2019, the Claimant received an irregular loan of Ksh500,000/= which she did not apply for. 2.When she failed to repay the loan arrears despite receiving demands, the Claimants filed a Statement of Claim dated 10th May 2023 seeking for judgement against the Respondent for:a.Payment of Ksh3,773,995.87 with interest at the prevailing commercial rates.b.General damages for inconvenience and frustration by the respondent.c.Cost and interest at such rate and for such period of time as deemed fit.d.Any such other relief as may be deemed appropriate. The Respondent’s Response 3.The Respondent admitted that she applied and was granted Ksh.300,000/= by the Claimant and state that she repaid in full before she could qualify for the next loan of Ksh.1,800,000/=. 4.She denied that she did not receive the irregular loan of Ksh.500,000/=. 5.Regarding the application of mobile loan through her phone number, the Respondent admitted that she applied but that she repaid the amounts in full. 6.Finally, she denied that she does not owe the Claimants the sum of Ksh.3,773,995.87/=. Hearing 7.During the hearing held on 14th April 2026, the Claimants’ witness Stanley Mwachi Ayumba who is the Chief Executive Officer of the Sacco stated that the Claimant was the Saccos’ administrator at the time she applied and received the 1st and the 2nd Loan. 8.Incidentally on the same date that the loan of Ksh.1,800,000/= was disbursed to her, a loan of Ksh.500,000/= was irregularly posted to her account without a loan application form. 9.The witness finally stated that as at September 2020, the Respondent had paid Ksh.50,000/= for all the loans granted. 10.When the Respondent was given the opportunity to testify, she stated that the policy of the Sacco did not allow a member to take a facility whilst an existing one remained unpaid. It was further her testimony that she was not involved in the processing of loans. Tribunal’s Direction 11.After the close of hearing of the Claimants and the Respondent’s case, the Tribunal gave the following orders:i.That the Claimant to file and serve written submissions within 7 days from the date herein.ii.That the Respondent to file and serve his written submissions within 7 days upon receipt of service by the Claimants. 12.On the date of writing this judgement, none of the parties had filed written statements. Issues 13.Having considered the Claimants Statements, the Affidavits, the Respondents defence, the oral hearing proceedings of both parties and the material evidence placed before the Tribunal, the issues that emerge for our determination is, whether the Claimant has proved their case on a balance of probability against the Respondent? And who will bear the cost of the claim? Analysis 14.The governing law on burden of proof is provided under Section 107(1) & (2) of the evidence Act which provide as follows:107.Burden of proof(1)Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.In the instant application, the burden of proof rests with the Claimant who is required to establish their case against the Defendant on a balance of probabilities. In other words, the Tribunal must be convinced that based on the evidence presented, the concurrence of the event was more probable than not. 15.Having stated so, we now analyse the evidence of the Claimant from the production of document during the hearing held on 14/4/2026. According to the record in the tribunals file, the chief executive officer of the claimant Sacco Stanley Mwachi Ayumba stated that the Respondent owes the Sacco an outstanding loan and interest of Kshs.3,773,995.87. He then went ahead to produce a List of Documents dated 10th May 2023. Among the documents on record, are two very faint loan application forms that does not show how much shares/savings/deposit was held in the account of the Respondent 16.Although the Claimants did not file, the Respondent’s Statement of Account to show how they treated the shares or savings/deposits of the Respondent, there is a schedule of workings that shows that as at 31st December 2022, the first loan of Ksh.300,000/= had an interest of Ksh.155,636.97/= to make a total outstanding amount of Ksh.455, 636.97/=.Regarding the 2nd loan of Ksh.1,800,000/= and Ksh.500,000/= the interest was Ksh.888,358.71/= as at 31st December 2022. 17.Undoubtedly, together with the Mobile loan of Ksh.100,000/= which the Respondent admitted that she borrowed and received, the additions of the principal Loans plus interest is Ksh.3,773,995.87. When cross examined during hearing whether the only payment she made as at 2020 was only Ksh.50,000/= her answer was;“Yes, I paid Ksh50,000/= and that Covid 19 pandemic affected my finance”The import of this confirmation is that the respondent did not repay any of the loans granted except Ksh.50,000/=. 18.However, the Respondent doubted the receipt of the irregular loan of Ksh.500,000 and stated under paragraph 4 (d) of her Statement of Defence that she was not involved in the loan issuance process. More specifically, she stated that if such irregular loan was made to her, then the Claimants are liable. This poses a question whether the Respondent is saying that because she found money in her account, she did not bother to find out from the Claimants why the money was posted into her account because it was not her who posted it? In our opinion this kind of mental thinking goes against the cooperative values of honest, trust and good faith as provided under Section 22 (a) of the Cooperative Societies Act cap.490 Laws of Kenya.A member of a cooperative society shall have the obligation to-a.Observe and comply with all the society by-laws and decisions taken by the relevant organs of the cooperative society in accordance with the by-laws of that society. 19.When asked during cross examination, whether she received the Ksh.500,000/= in her account, the Respondent meandered in her answer and eventually said “I will go and check”. The advance was made on 4th December 2019 and the hearing was held on 14th April 2026; how could she not have noticed such an amount of money in her account for almost seven (7) years? Certainly, she knew about it and did not bother to alert the Claimants but instead she used the money and did not repay it. 20.Up to this point, it is our finding that that the Claimants have discharged their responsibility to proof that the Respondent owe them Ksh.3,773,995.87. Disposition 21.In the light of the foregoing, we conclusively find that the Claimants have established their case on a balance of probability.Accordingly, we enter judgement in favour of the Claimant against the Respondent for the payment of the balance after deducting the Respondents shares/savings/deposit held from Ksh.3,773,995.87/=.i. In absence of any shares/savings or deposits in the Respondents account held by the Claimant, the Respondent is hereby ordered to pay the loan outstanding in full.ii. The cost and interest will be borne by the Respondent from date of filing suit. JUDGMENT DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG.CHAIRPERSON SIGNED 15/6/2026Hon. Beatrice Sawe Member Signed 15/6/2026Hon. Fridah Lotuiya Member Signed 15/6/2026Hon. Michael Chesikaw Member Signed 15/6/2026Hon. P. Aol Member Signed 15/6/2026Court Assistant - MutaiMs. Njeri advocate for the ClaimantMs. Ithondeka advocate for the RespondentHon. J. Mwatsama Ag. Chairperson Signed 15/6/2026