https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/251

Evergy Regulated Non-WDT Society Ltd v Onzere (Tribunal Case 322/E411 of 2023) [2026] KECOPT 251 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KECOPT 251 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 322/E411 of 2023 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 4, 2026 Between Evergy Regulated Non-WDT Society Limited Claimant and Sammy Onzere Respondent Judgment Brief Facts. 1.The Claimant is a registered savings and credit cooperative society and the Respondent is a member of the Claimant with membership No.1757.That vide a loan application dated 05/11/2019 the Respondent applied for a loan of Ksh.1,800,000/= payable within a period of 48 months on an interest of 1.2% per month. The agreed repayment instalment was agreed at Ksh. 49,549/= per month. The loan was secured by five (5) guarantors and the shares of the Respondent stood at Ksh.803,800/= at the date of the application.The Claimant further state that the Respondent applied for emergency loan and was advanced the loan via his mobile No 0720531756 as follows;i.On 16/06/2019 Ksh.20,000/=ii.On 17/07/2019 Ksh.20,000/=iii.On 30/08/2019 Ksh.20,000/=iv.On 09/09/2020 Ksh.20,000/=Total emergency Loan advanced is Ksh.80,000/= The claim. 2.Vide a Statement of Claim dated 10th may 2023 the claimants claim a total of Ksh.2,651,738.95 from the Respondent which is made up of an outstanding loan balance of Ksh.1,997,388.30 and an accrued interest of ksh654,350.65. 3.In a witness statement sworn by Stanley Mwachi Ayumba the Respondents CEO, the Claimants state that the respondent made a few repayments from the time he took the loan and then stopped repayment without any notice or reason. The respondent’s defence. 4.In his statement of defence dated 14th July 2023, the respondent denied that he owes the Claimants Ksh.2,652,738.95 and that he had repaid all the emergency loan. 5.The Respondent state that he demanded for a comprehensive statement of his account but the claimants refused to provide. Hearing. 6.During hearing on 14/4/2025, the Respondent stated that he repaid Ksh.50.000/= and Ksh.15,000/= through the Claimants’ bank and another Ksh.300,000/= which he paid cash and he was issued with a receipt.It was his testimony that he never filed the receipts for the repayment because he lost them. 8.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. 9.On the date of writing this judgement, the Respondent has not filed his written statements. Issues. 10.Having considered the Claimants statements, the affidavits, the respondents defence, the oral hearing proceedings of both parties and the submissions of the Claimant and the material evidence placed before the tribunal, the issues that fall for our determination are:a)Whether the Claimant has proved their case against the respondent?b)Who should meet the cost of the claim? 1st Issue. Whether the Claimant has proved their case against the respondent? 11.During the hearing held on 14/4/2026, the chief executive officer of the Claimant Sacco Stanley Mwachi Ayumba restated that the Respondent owes the Sacco an outstanding loan and interest of Ksh.2,651738.95. He produced the Respondent’s loan application dated 5/11/2019 which was approved on 6/11/2019 and a bank extract of disbursement of the loan. Further, he produced a copy of queue free system showing the mobile loans disbursed to the Respondent through his mobile telephone number 0720531756. Finally, he produced a cooperative bank statement showing that the respondent repaid the loan three (3) times as captured hereunder.1.On 10/12/2019 he paid Ksh.16,000/=2.On 24/8/2020 he paid Ksh.50,000/ =3.On 10/7/2021 he paid Ksh.16,000/= 12.The Respondent in his statement of defence denied owing the amount claimed by the Claimant. But on the date of hearing on 14/4/2026, he admitted that he borrowed and was granted the Ksh.1,800,000/=. That he repaid Ksh.300,000 by cash and sh.65,000/=through the bank. He admitted that he owes some money to the claimant but not Ksh.2,651738.95.When asked whether he was given a receipt for the cash of Ksh.300,000/=, the respondent stated that he lost his documents. 13.At this juncture, we reaffirm that this tribunal is a court of records and failure to file evidence of the cash payment of the Ksh.300,000/= is not acceptable. This Tribunal will not entertain an assertion that cannot be proved. Accordingly, we dismiss the assertion. 14.For the payment through the bank, we note that the respondent repaid Ksh. 82,000/= as shown in the claimants’ bank statement dated 15/10/2022 as referenced under paragraph 11 above but not Ksh.66,000/= as orally stated during hearing. 15.In addition, the respondent stated that he held some shares in the Sacco which was Ksh. 803,800/= as at 6/11/2019. He wondered where these amounts disappeared to? 16.Looking at the figures in the claimants’ statement of claim, there is material evidence that the respondent took a loan of Ksh.1,880,000/= which he admitted. However, we note that there is a figure of Ksh.117,388.30 which is added to the original amount of Ksh.1,880,000 to arrive at Ksh.1,997,388.30. There is no explanation given by the claimant regarding this amount and we are of the opinion that if the claimants had given the respondent his statement of account he would have raised an alarm during hearing. The tribunal is equally unable to establish where and how these amounts was added to the loan account of the respondent. 17.Further, the claimants have not demonstrated that the respondent does not have shares or savings/deposits in the Sacco and have failed to show how they have treated it (if any).On the other hand, it was verified by the secretary of the claimant in the loan application on 6/11/2019 that the respondent’s shares stood at Ksh.803,800 at the time. We have not seen where these amounts have been captured in the claimants’ statement of claim. 17.Under the circumstance and with the opaque nature of the calculations of the Claimants, we are of the opinion that the shares/savings/deposits of the respondent being held by the claimant must be shown as a deduction when calculating the loan balance due from the respondent. Afterall the respondent in clause D of the loan application had offered his shares and guarantors as security. 18.Accordingly, in the absence of a plausible reason why the respondent’s shares held have not been captured in the calculations, we order that the amount of ksh803,800/= be deducted from the amount claimed of Ksh.2,651738.95 which leave a balance of ksh1,847,938.95 to be repaid. 19.Granted that this application is that of a liquidated demand, the relevant law that governs the tribunal to come up with its judgement is the provisions of order 10 rule 4 of the civil procedure Rules 2010 which provide as follows:4(1)Where the plaint makes a liquidated demand only and the defendant fails to appear on or before the day fixed in the summons or all the defendants fail to appear, the court shall on request in Form No. 13 of the Appendix A, enter judgement against the defendant or defendants for any sum not exceeding the liquidated demand together with interest thereon from the date of filling of the suit at such rate as the courts thinks reasonable to the date of the judgement and the costs. 20.. In the instant case, the Respondent/defendant did not fail to attend the tribunal but he attended and failed to prove that he repaid the loan that was granted to him by the claimant. On their part, the Claimant proved that they loaned money to the respondent and produced bank statement evidence that showed that the respondent made only three (3) deposits in form of repayment for the entire period of the existence of the loan. This was contrary to clause B in the loan application form which detailed that he was supposed to pay Ksh.49,600/= per month for 48 months. 21.The Respondent looks like a run-away member who resigned to slumber immediately after being granted a loan by the claimant. Equity cannot help him to continue to avoid the repayment of the loan neither can the tribunal or a court of law help him. Accordingly, we order that the respondent to pay the claimant Ksh. 1,847,938.95.At the same time, we direct that the claimant is at liberty to pursue recovery from the Respondent the amount of shares deducted of Ksh.803,800/= by providing cogent evidence and explanation of how and where these amounts together with interest disappeared to? Who should meet the cost of the claim? 22.Although costs of an action or proceeding are at the discretion of a court, the general principle is that costs follow the event as provided under section 27 of the Civil Procedure Act cap 21. As such the successful litigant should ordinarily be awarded costs unless for good reason the court directs otherwise. In the instant case the Claimants are the successful litigant and we hereby award costs accordingly. 23.In conclusion and in light of the foregoing analysis, the Tribunal hereby enters judgement in favour of the Claimants against the Respondent for payment of Ksh.1,847,938.95 plus costs and interest at the Tribunal rate from the date of this judgement until payment is made in full. JUDGEMENT DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF JUNE, 2026.HON. J. MWATSAMA - AG.CHAIRPERSON SIGNED 4.6.2026HON. BEATRICE SAWE - MEMBER SIGNED 4.6.2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 4.6.2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 4.6.2026HON. P. AOL - MEMBER SIGNED 4.6.2026Tribunal Clerk MutaiNjeri advocate for the ClaimantIthondeka advocate for the RespondentITHONDEKA:We pray for 30 days Stay of Execution.NJERI:No objection.Tribunal Order:30 days Stay of Execution granted.