Jackson Kiogora Gitonga v Centenary Sacco Limited [2021] KECPT 284 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO 583B OF 2017

JACKSON KIOGORA GITONGA........................................................CLAIMANT

VERSUS

CENTENARY SACCO LIMITED....................................................RESPONDENT

JUDGMENT

a) The matter for determination is a claim filed on 4/10/2017 seeking the following prayers. The Respondent filed a response on 18/3/2018.

b) The Matter came up for inter-parties hearing and CW-1 Jackson kiogora, CW-2 Magdelene Mwende- testified and adopted their evidence-in-chief.

c) The Respondent witness - Eric Mureithi also testified and produced his witness statement and documents as exhibits.

d) The parties filed their written submission on 25/8/2021 and 2/6/2021 respectively.

Claimants case

The Claimant submitted that he was a member of the Respondent Member number 8073. That he obtained a loan facility from the respondent of Kshs. 80,000/- in September 2015 which was to be repaid within a period of 18 months till 30. 03.

2017. That as at 16. 09. 2016 he had repaid an amount exceeding Kshs.60,000/- having a balance if Kshs. 20,830.

51. That the Respondents employee Eric Mureithi went to his home in the absence of himself and his wife and carried away household prior notice and did not provide an inventory for the same of the estimated value.

That this remitted an embarrassment and loss to the claimant.

Respondents case

The Respondent submitted that indeed the Claimant had obtained the facility that he borrowed through a micro-finance group and it was guaranteed by members of the Igoji Fellowship group to which the Claimant was a member.

That the member of the micro-finance group co-guarantee each other and ensure that members meet their financial obligations and in default , they jointly and severally were to recover the pledged items independently and pay the loan of the defaulting member.

That the claimant had defaulters in payment of the loan and owed a sum of Kshs. 51,968/-when the members of Igoji fellowship group moved to recover the goods of claimant without involving the Respondent .

Issues

i. On Default , did the Respondent proclaim and sell the goods of the claimant?

ii. What remedies are available to the claimant?

iii. Costs

Issue 1- On Default , did the Respondent proclaim and sell the goods of the claimant?

We have perused the loan application form dated 09. 09. 2015 and note that indeed the claimant obtained and loan which was guaranteed by Igoji Fellowship group where members were – Jackson Kiogora-Chairman, George Muturi-Treasurer and Gregory Okanya – Secretary. These officials signed the guarantee on 09. 09. 2015 and the same was witnessed by Magdalene Mwende, wife of the Claimant.

On 27. 08. 2016 the Respondent sent a default notice to the CW-2 wife of the claimant for Kshs. 16,620/-, for default of Kshs. 8,620/-, interest Kshs.8,000/- And penalty of Kshs. 3,000/-.

On 09. 09. 2016 the Respondent sent a default notice of Kshs. 51,568/- for default of Kshs. 40,568/- entered Kshs.5,000/- to the Claimant. The two notices were copied to the guarantors.

On 17. 09. 2016, Igoji fellowship members wrote to the Respondent informing them that they had attached the goods of the Claimant on 16. 09. 2016 with a view to settle / offset the loan arrear and fines.

They also indicated that the claimant owed the group Kshs. 13,450/- for the said attachment.

On 20. 09. 2016, the Igoji fellowship group wrote again to the Respondent informing them that , after the auction they had realized Kshs. 49,160/-.

The Claimant had reported the matter to the police and the Respondent’s RW-1 was never arrested or charged for the same.

The RW-1 clearly indicated and confirmed though the said documents that indeed it was the Igoji fellowship group, being the guarantors, who had proclaimed, attached and sold the claimant’s goods in order to offset the defaulted loan amount. The RW-1 confirmed that the said group called him to witness the said attachment and that he was a mere observer since he did not participate in the same.

The RW-1 confirmed that the group paid the defaulters amount after the auction.

The Claimant admitted in the repayment any evidence that he indeed cleared the loan.

The evidence on record clearly indicates that the Igoji fellowship group which had guaranteed the Claimant’s loan proclaimed, attached and auctioned the goods of the claimant and then they paid to the Respondent the defaulted amount and this offset the said loans.

We therefore find that the Respondent cannot be blamed for the actions of the guarantors in this case since when the guarantors took actions, the did so include their obligation as guarantors of the Claimant and not as the agents of the Respondents.

Issue 2- What remedies are available to the Claimant?

Having found that the Respondents were not responsible for the proclamation , the attachment and sale of the Claimant’s goods, we find that the Claimant was the author of his own misfortune and therefore he cannot be seen to blame the Respondents for his own irresponsible behavior.

We therefore find that the Claimant’s claim fails as it has not been proved on a balance of probabilities.

We therefore order as follows:-

1. The Claimant’s claim is hereby dismissed with costs.

JUDGMENT READ AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 2. 9.2021

Hon. J. Mwatsama Deputy Chairperson Signed 2. 9.2021

Mr. Gitonga Kamiti Member Signed 2. 9.2021

Mr. B. Akusala Member Signed 2. 9.2021

Tribunal Clerk R. Leweri

Kiruai Advocate for Respondent

No appearance for Claimant

Hon. B. Kimemia Chairperson Signed 2. 9.2021