[2023] KECPT 858 (KLR)

Jachin Sacco Society Limited v Kimandu (Tribunal Case 429/E 243 of 2021) [2023] KECPT 858 (KLR) (26 October 2023) (Ruling)

Neutral citation: [2023] KECPT 858 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 429/E 243 of 2021

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

October 26, 2023

Between

Jachin Sacco Society Limited

Claimant

and

Nahashon Kaniaru Kimandu

Respondent

Ruling

Facts Of The Case 1. Jachin Sacco Society, the Claimants, is a registered Savings and Credit Co-operative Society which receives and lends its members money and on 15th January, 2020 as per the Loan Application Form before court. It advanced a sum of Kshs. 1,860,000/= to one of its members, Nahashon Kaniaru Kimondo who is also the Respondent in this case.

2. The terms of the loan as seen in the Loan Application form were that the Respondent was to pay back the loan in 48 months, with the loan attracting an interest of 1% per month on reducing balance.

3. From the statement of loan repayment before court presented by the Claimant, which has not been challenged by the Respondent only paid thrice to service the loan before this suit was instituted.

4. The Claimant later moved to court after following up the Respondent for payment to no success and as at 5th October, 2021 when the suit was instituted and after offsetting his savings of Kshs. 633,777/=, the total outstanding balance stood at Kshs. 1,444,846/=.

5. On 8th June, 2022, The Claimant filed a Notice of Motion Application dated 30. 5.2022 under Order 36 Rule 1 of the Civil Procedure Act seeking for the Statement of Defence filed in this suit to be struck off and judgement be entered in their favor. As to them, this Statement of Defence filed does not;i.Disclose any reasonable Defence in law or raise any triable issue.(ii)Is a slam Defence and only contains general denials which is devoid of any particulars of what is alleged as illegal or untenable charges and interests and is only meant or aimed at delaying payment of the sum owed.

6. On 13th June, 2020 in relation to the said Notice of Motion, as a Tribunal we directed both parties in this suit to serve each other and after close of service to file Written Submissions, documents filed as evidence and hereby reduce the issues for determination into;i.Whether the Defence raises triable issues or should be struck off and judgement entered in favor of the Claimant.(ii)Whether the Tribunal should enter judgement for the Claimant in the sum of Kshs. 1,444,846/= plus interest at court rates from 5th October, 2021 till payment in full.

Issue One: i. Whether The Defence Raises Triable Issues Or Should Be Struck Off And Judgement Entered In Favor Of The Claimant.Order 2 rule 15 of the Civil Procedure Code deals with striking out of pleadings and it states that;"Rule 15 (1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that-a.It discloses no reasonable cause of action or Defence in law; orb.It is scandalous, frivolous or vexatious; orc.It may prejudice, embarrass or delay the fair trial of the action; ord.It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgement to be entered accordingly, as the case may be" 7. It is important to note that courts only strike out pleadings as a last resort, and in Blue Shield Insurance Company Ltd vs Joseph Mboya Oguttu [2009] eKLR the Court of Appeal had this to say:“The principles guiding the court when considering such an Application which seeks striking out of a pleading is now well settled. Moden J. A (as he was then) in his judgement in the case of D. T. Dobie and Company (Kenya) Ltd vs Muchira (1982)KLR 1 discussed the issue at length and although what was before him was an Application under Order 6 Rule 13 (1) (a) which was seeking striking out a plaint on grounds that it did not disclose a reasonable cause against the Defendant, he nonetheless dealt with broad principles which is effect covered all other aspects where striking out a pleading or part of a pleading is sought. It was held in that case inter alia as follows:-"The power to strike out should be exercised after the court considered all facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge..."

8. A careful introspection of the Statement of Defence in this suit, returns the finding that it only comprises of mere denials, and instances that it does not direct this court to the particulars or specifics of what it alleges. For example, the Respondent claims that the loans is fully paid and or that has gotten into some arrangement with his guarantors who have helped him to settle the loan but he has not provided before this court any documentation or evidence to show deductions from him or his guarantors to settle the loan. He has also not provided any evidence or statement of Accounts to support errors in calculation or to support claim of fraud by the alleged sneaked illegal, unknown and untenable charges or interest that has made the security of the loan impossible.

9. We make a finding that the Statement of Defence in question does not raise a reasonable Defence neither does it raise prima facie triable issue and on policy grounds and or considerations, we would allow a sham statement on Defence to delay a Claimant from his Judgement

ii. Whether The Tribunal Should Enter Judgement For The Claimant In The Sum Of Kshs. 1,444,846 Plus Costs And Interest At Court Rates From 5th October, 2021 Till Payment In Full.It is settled law that it is not the role of Courts to rewrite or imagine contracts between parties before it. In this suit, the Claimant has through evidence availed the loan Application form setting out exactly and clearly the terms of the loan contract and a statement of accounts which has also shown how much of that loan has been paid. The Respondent has not provided this court with any document and/or evidence to challenge the terms of accessing the loan or the Statement of Accounts to support his Claim that the loan is settled and/or that the Claimant sneaked in some illegal, unknown and untenable charges or interest that have made servicing of the loan impossible.That being the case we find no reason or justification to deny the Claimants their prayers for the sum of Kshs 1,444,846/= plus interest at court rates from October, 2021 till payment in full.

Upshotsi.Application dated 30. 5.2022 is llowed.ii.The Statement of Defence filed on 11th October, 2021 is hereby struck off and judgement entered in favor of the Claimant.iii.Judgement is entered in favor of the Claimant for the sum of Kshs 1,444,846/= plus interest at court rates from 5th October 2021 till payment in full.iv.The Claimant is awarded the costs of the suit.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023TRIBUNAL CLERK JONAHMrs. Muya advocate for Claimant.Irungu advocate for the RespondentIrungu advocate- We pray for 30 days stay of execution and certified copy of Ruling and proceeding.Muya advocate – No objectionTribunal order30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023