[2025] KECPT 309 (KLR)

Ikinya v Bingwa Sacco Society Limited (Tribunal Case 4B of 2012) [2025] KECPT 309 (KLR) (29 May 2025) (Ruling)

Neutral citation: [2025] KECPT 309 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 4B of 2012

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

May 29, 2025

Between

Hudson Ngaire Ikinya

Claimant

and

Bingwa Sacco Society Limited

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Motion Application dated 5th May 2024 filed by the Claimant under a Certificate of Urgency seeking for the following orders:1. Spent2. That pending the hearing and determination of this suit, this Honourable court be pleased to issue an order compelling the Claimant to render an up to date Statement of Account that reflects Kshs. 100,000/= and deductions that are being made on the claimant’s account from proceeds of tea leaves since 2012. 3.That the Honourable court via a ruling delivered on 20th April, 2023 directed the Respondent to file the Statement of Account in 21 days of the ruling, the Respondent in total defiance of the directions filed it more than a year later hence should be struck off court’s record.4. That the Claimant wishes to notify the Honourable court that the Respondent is claiming higher interest rates than the actual loan amount and hence they are bared by the Duplum Rule to claim more than the principal amount.5. That under SASSRA rules and regulations saccos are mandated to charge at least 12% interest per annum on the loan on a reducing balance whereas in this case the interest is over 18% hence the honorable court should dissect the provided amounts as outstanding as against the principal amount.6. That the Respondent has been effecting deductions from the claimant’s accounts respectfully and periodically and crediting for purposes of repayment of the Sacco loan. This is clearly demonstrated with the deductions from tea proceeds that have not been accounted for.7. That this Honourable court be pleased to make such other or further orders to meet the ends of justice.

2. The Claimant raised four grounds on the face of the Application to wit:a.That the Claimant is ready to offset the accrued monies and his payment planb.That the Respondent took more than 1 year to comply with The Tribunal directions to file his Statement of Accountc.That the Statement of Account filed by the Respondent is in contravention of the Duplum Rule where the interest amount cannot exceed the principald.That deductions being made on proceeds from tea leaves have not been amounted force

3. The Respondent through a Replying Affidavit sworn by Mr. Muchai Mwaniki the General Manager responded to the grounds raised by the Claimant one by one in the end he sought that the Claimants Notice of Motion application be dismissed with costs.

4. Reading through the tribunals file we note that this matter was filed in 2012 and riddled with various applications rulings ,orders ,unfilled promises and other theatrics such as change of advocates from one to another

Analysis 5. We have considered the grounds raised by the notice of motion application dated 5/5/2024 filed by the Claimant and the written submissions dated by 1/1/2025 we have further considered the rebuttals in form of responses filed by the RespondentIn order to establish whether the Claimant’s Notice of Motion has merit or not we have isolated three issues.Issues1. Whether the Claimant is ready to pay the decretal sum and has a payment plan ?2. Whether the in Duplum Rule apply to the instant decretal sum3. Who should bear the cost ?

Whether the Claimant is ready to pay the decretal sum and has a payment plan? 6. From the Tribulations of the loan advanced to the Claimant filed by the Respondent as at 14/7/2012 the total amount loan stood at Kshs . 563,000/-According to the Respondent after deducting an amount of Kshs. 150,000/- which was paid by the Claimant on 17/7/2012 the balance stood at Kshs. 481,488/-This is the amount which has been on the partied table to he settled or not to be settled .

7. When the Claimant appointed the law form of Vusha Osembe and Mambiri advocates to present him on 22/2/2021 , the advocates acting on his instructions wrote to he advocates of the Respondent in the following termsOur client proposes a payment plan whereby he pays the amount owed in installments as it or before 5th April 2021 our client Kshs .400,000/- and the remaining balance to be paid in installments of Ksh.200,000/- on or before 5th of every month till payment in full failure to which there be execution against himThis was a clear indication that the Claimant was willing to settle the decretal sum but did he honor his promise

8. From the records there are several hand-written letters by the Claimant promise to settle but the same Claimant seemed to have taken circles to fulfil the promises made vide letters dated 23/10/2010, 31/10/2011 and 11/11/2011 owing othersThe Claimants procrastinate to fulfill promises is a habit that has played out in the instant suit

9. Since the date he wrote the letter and promised to make payments it is now over four years when he has not settled the decretal sumIt is therefore difficult to belief that the claimant has a payment plan leave alone any desire to settle the amount the Notice of Motion Application dated 5/5/2025 is therefore a delaying tactic that is meant to settle the Respondent enjoyment of the fruits of the Judgement

ii) Whether the duplum rule apply to the instant decretal sum ? 10. The Claimants argued that the Duplum Rule barred the Respondents from claiming more that the principal amountThe Tribunal is seized with the provisions of the common law rule and that the rule specifically applies to a loan and its contractual interest but not to the interest awarded on the decretal sum by the TribunalIn this case the in Duplum Rule doesn’t apply

11. However, this Tribunal entered a Judgement against the Claimant which was not appealed against and thereafter a Decree was extracted for Kshs. 481,488. 69/= this is the amount which the Tribunal ordered the claimant to pay plus 12% interest per annum until payment is made in fullIt is the same amount that the Claimant in his written submission dated 17/1/2025 admitted that he owed the Respondent

12. On the breath ,the Claimant has not demonstrated that the interest charged is more than the principal loan which was granted to her further we note that the Claimant failed to submit on the same which means that the claim on in Duplum Rule is unsubstantiated and the same must fail.

13. The Claimant has raised an issue on deductions made over tea produce which he stated that the proceeds are channeled through the SaccoThe Respondent filed the claimants detailed and bulky statement account from 2008 which requires the claimant to visit the Respondent’s office and analyses with the accounts officers the tea payment deposits under a code No. NU 009XX042Having examined the Claimant’s Statement of Accounts and noted that the tea produce payments are deposited in his account the claim that the proceed from the tea leaves have not been accounted for is not factual must fail

14. The upshot of this is that from the face of the Notice of Motion application dated 5/5/2024 the contents of the Supporting Affidavit and the reply to the Respondent Replying Affidavit ,its evidence without shadow of doubt that the Claimant is a litigious individual who fancies to use delaying tacticsThis Tribunal must put a stop to these theatrics in the instant case .15 . Consequently, we are of the view the Notice of Motion has no merit and the prayer have no merit and are dismissed.

Orders 16. We hereby make the following orders on the claim prayers :1. Application dated 5. 5.2024 is hereby dismissed with costs to the Respondent.2. For avoidance of doubt the Respondent can proceed with execution of the decree.3. File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 5.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 5.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 5.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 5.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 5.2025HON. P. AOL MEMBER SIGNED 29. 5.2025Tribunal Clerk MutaiMs. Otieno advocate for the RespondentHudson Ngaire – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 5.2025