[2023] KECPT 1066 (KLR)

Gichungu v Stima Sacco Society Limited (Tribunal Case 103/ E 219 of 2022) [2023] KECPT 1066 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KECPT 1066 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 103/ E 219 of 2022

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

November 30, 2023

Between

Jacqueline Joyce Wanjiru Gichungu

Claimant

and

Stima Sacco Society Limited

Respondent

Ruling

Facts of the case. 1. Around 2021, the Claimant applied for a credit facility at Kenya Commercial Bank which was denied for reason that she had been negatively listed under Metropol and Credit Info Credit Reference Bureau, (CRB).Upon inquiry, she obtained credit reports from the two Credit Reference Bureaus which disclosed that the listing was as a result of loan she allegedly had with the Respondents. The Claimant being a stranger to the alleged loan, approached the Respondent who after cross-checking facts, admitted to the mistake and explained that the mistake was as a result of the Claimant being a similar number as their member of staff.

2. The Claimant still felt deeply aggrieved by the events which she claims has dented her commercial image and Reputation, tainting her as a financially unstable customer at the Kenya Commercial Bank and all other financial institutions both local and international, necessitating the filing of this suit to seek compensation for the failure to ensure that the negative information submitted to the two Credit Reference Bureaus was complete and accurate. The Claimant was seeking Kshs. 5,500,000/= as compensation.On 20th April, 2022, the claimant filed a notice of motion application under order 2 rule 15(1) a and d, order 7 rule 1, order 13 rule 2, order 36 rule 1, order51(1) of the Civil Procedure Rules seeking among others that: Summary Judgment be entered in default of Defence.

Summary Judgment be entered against the Respondent on their admission of facts.

The Tribunal to grant any reliefs it deems necessary and expedient to meet the ends of justice.

3. The Respondent had entered appearance through their Advocates but failed and or declined to file Defense within the stipulated timeframes.The Tribunal on 21st April, 2022 gave orders which were not fully complied with and on 12th July, 2022 granted orders for Summary Judgement upon the Respondent or their Advocate not appearing in court.

4. On 1st August, 2022, the Respondent filed a Notice of Motion under Order 12 Rule 7 for orders to set aside the orders issued on 12th July, 2022. The application was based on the grounds that his advocate logged into the virtual court session using erroneous link that had been posted on the Kenya Law Reports website and consequently failed to appear at the time the file was called out in court.This Tribunal gave the Respondent benefit of doubt and set aside the Orders issued on 12th July, 2022.

5. On 12th July, 2023, this Tribunal gave further directions in relation to this suit, and the same having been complied with; what remains for determination is:Issue one:i.Whether this Tribunal should issue Summary Judgement at this point of proceedings.

Whether this Tribunal should issue Summary Judgement at this point of proceedings.Order 36 Rule 1 is the Specific instrument that states the tenets for seeking Summary Judgement for liquidated amounts, it states that:“In all suits where a Plaintiff seeks judgement for –a.A liquidated demand with or without interest: orb.The recovery of land with or without a claim for rent or me sue profit, by a land lord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenants or against a trespasser, where the Defendant has appeared but not filed a Defence, the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or men sue profits”Its judicial practice over the years that for summary judgement to be entered for a liquidated amount, that amount must have been precisely determines or is a specific amount. That that amount should have been already ascertained or that amount should be capable of being ascertained as a matter of mere arithmetic. That that amount should not be subjected to courts investigation beyond mere arithmetic – if it is, then it is not a liquidated amount. 6. In this particular case, the Claimant has not ascertained the amount she is claiming as liquidated. It is not clear to this Tribunal how she has arrived at the sum of Kshs. 5,500,000/=. It is our position that the sum must be subject to further investigation that go beyond mere arithmetic to ascertain, and as such, the Claimant’s Application for Summary Judgement is not in conformity with Order 36, Rule 1Final Orders.i.The Notice of Motion Application filed on 20th April 2022 is found to be without merit and dismissed.ii.Each party to bear its own costs.iii.Mention for pretrial directions 18/4/2024.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE - MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 30. 11. 2023HON. PAUL AOL - MEMBER SIGNED 30. 11. 2023TRIBUNAL CLERK - JONAHOmondi advocate for the Respondent/ApplicantOtieno advocate for the RespondentMs. Thuku advocate for the ClaimantRuling as delivered.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 11. 2023