[2021] KECPT 610 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.315 OF 2020

JOSEPH KAMAU MUGO............................................................CLAIMANT

VERSUS

CHANIA KIBWEZI TRAVELLORS SACCO.......................RESPONDENT

RULING

Vide the Application dated 23. 9.2020, the Respondent has moved this Tribunal seeking for Orders inter alia:

1. Spent;

2. That this Honourable Tribunal be pleased to issue a mandamus Order compelling the Defendant/Respondent to immediately release from their (NTSA) Portal the Applicant’s four motor vehicles registration number KBJ 774V, KBL 024H, KAQ 305 Q and KAR 637F which are non-contested pending hearing and determination of this suit;

3. That this Honorable Tribunal be pleased to issue an order for restructuring of the loan due after deductions of all the nominal or book value of his shares, dividends or his interests any deposits held by the society on the Applicant’s behalf on condition that the Respondent can continue holding the Applicant’s motor vehicle registration KBC 351F logbook in lien pending full payment of the loan due ;

4. That the costs of this Application be provided for.

5. That this Honourable Tribunal be pleased to make such further or other orders as it may deem just and expedient in the circumstances of this case.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by the Claimant on even date (23. 9.2020); and

b. Further Affidavit sworn by the Claimant on 27. 10. 2020.

The Respondent has opposed the Application vide the Replying Affidavit sworn by Alfred Githae Kimani its Chairman on 13. 10. 2020.

Vide the directions given on 14. 10. 2020, the Application was canvassed by way of written submissions. The Claimant filed his written submissions as follows:

a. Initial set of submissions on 11. 11. 2020;

b. Supplementary submissions on 18. 11. 2020,

The Respondent filed its submissions on 16. 11. 2020.

Claimant’s Contention

Vide the instant Application, the Claimant prays for the Orders sought to be granted because of the following reasons:

That the Respondent has without cause, refused and/or declined to release three (3) of his five (5) motor vehicles from the NTSA Portal.

That on 27. 7.2020, he wrote to the Claimant requesting for the withdrawal of the said three (3) motor vehicles. That instead of obliging and doing so, the Respondent made an unprocedural and illegal resolution to expel him as a member and went ahead to demand that he clears all his debts with it.

That, cumulatively, he applied for a loan of Kshs. 2,152, 781/= and pledged Motor Vehicle Registration No. KBC 351F as security by depositing its logbook with the Respondent. That he currently has an outstanding loan of Kshs.1,883,766/=. That he also has savings with the Respondent totaling to Kshs.1,090,182/=.

That he was expelled without being afforded an opportunity to be heard. That this goes contrary to the Respondent’s by-laws as an expelled member is entitled to be repaid the amount of the value of his shares, dividends, or interests and deposits.

Respondent’s Case

The Respondent has opposed the Application on the following grounds:-

That as at 31. 12. 17, the Claimant was its treasurer. That during his tenure as the treasurer, the Claimant unprocedurally advanced himself a loan of Kshs.2,152,781/=. That as its member, the Claimant has five (5) vehicles, namely;

a.KBJ 774V;

b.KBL 024H;

c.KAQ 305Q;

d.KBC 351T;

e.KAR 637F

That these vehicles are operating under its TLB License.

That in disregard to its Rules and Regulations, the Claimant has gone ahead to re-brand three of its vehicles with a company called J-Classic Limited.

That the daily returns of the five (5) motor vehicles is what is used to repay the loan.

That the Claimant has not been repaying the loan and the Respondent’s other dues.

That it is the Claimant’s intention for the said motor vehicles to be released from the portal so as to evade repayment of the loan.

That as at the time he signified intention to withdraw three (3) of his motor vehicles, the Claimant was already in arrears.

That it is willing to discharge the said motor vehicles as long as the Claimant repays his debt.

Claimant’s further Affidavit sworn on 27. 10. 2020

This Affidavit is a rebuttal to the averments made by the Respondent in the Replying Affidavit sworn by Alfred Githae Kimani on 13. 10. 2020.

As regards the contention that he unprocedurally awarded himself a loan, the Claimant contend that he followed the usual protocols before being advanced the said loan.

That he branded the three motor vehicles after being expelled from the Sacco.

That it is only motor vehicles KBC 351F and KAZ 621X which were predominantly servicing the loan.

That he has not defaulted in repayment of the loan and that his last payment was on 4. 3.2020.

Issues for determination

This Application has presented the following issues for determination:

a.Whether the Claimant has laid a proper basis to warrant the making of an Order compelling the Respondent to release his motor vehicles from the NTSC portal.

b.Whether we have jurisdiction to Order for restricting of loans.

c.Who should meet the costs of this Application?.

Release of motor vehicles

Prayer two (2) of this Application requires us to make an Order of

“..mandamus compelling the Defendant/Respondent to immediately release from their (NTSC) Portal the Applicants motor vehicles number KBJ 774V, KBL 024K, KAQ 305Q and KAR 637F.

The import of this Order is that the Tribunal is being invited to issue a mandatory injunction compelling the Respondent to release the listed motor vehicles from its portal. This being the case, what then are the conditions to be taken into account before we can make and/or issue such Orders? We find the answer to this questions in the case of Kenya Breweries Limited & Another - vs- Washington Okeyo [20. ...]eKLR. In the pertinent part, the court held thus:

“ The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24. Halbury’s Laws of England, 4th Edition page 48 which reads,

“ A mandatory injunction can be granted on an interlocutory Application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted..”

This position was ....by this court in the case of Locabail International - vs- Agroeport & others [1986] AKLR 9017-where the court held in the pertinent part thus:

“ A mandatory injunction ought not to be granted on an interlocutory Application in the absence of special circumstances, and that only in clear cases either where the court thought the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the Defendant had attempted to steal a match from the Plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial, it would appear that the injunction had rightly been granted, that being a different and a higher standard, there was required for a prohibitory injunction.”

It thus follow that a mandatory injunction can only be granted on special occasions or circumstances and only when a case is clear. The question begs as to whether the instant Application has presented existence of special circumstances to warrant for grant of this injunction. Our answer is in the negative. What is apparent is that the Claimant took a loan from the Respondent. He confirms that the current balance as at the time of filing this claim is Kshs.1,883,766/=. That he took the said loan on the security of Motor Vehicle Registration No. KBL 351 F. That there is no reason therefore as to why the other motor vehicles should be discharged. Further, he contends that he has savings amounting to Kshs.1,099,182/= and that the same is sufficient security to guarantee clearance of the loan.

Section 33of the Co-operative Societies Act. Its titled “ society to have first charge over debts, assets, etc. in certain cases”

It goes on to provide:

“33 (1) subject to any written law as to priority of debts, where a Co-operative Society has-

(1) Lent money to any member or past member to enable him buy any such things as aforesaid or to obtain any such services, the Society shall have a first charge upon such things or, as the case may be, any agricultural produce , animals or article, produced therewith or therefrom, or with the aid of such money”

It is thus apparent that as long as the Claimant remains indebted to the Respondent, the Respondent has a first charge over all his motor vehicles registered with it.

Offset with savings

It is trite law that a member cannot seek to offset his loan with his deposits with a Sacco. The said member having to first clear his loan before demanding refund of his deposits.

Restructuring of loan

The Claimant has invited us to restructure his loan. For starters, we find that the said prayer cannot be entertained at an interlocutory stage. Secondly, we find that we do not have jurisdiction to re-write contracts of parties who come before us.

Conclusion

The upshot of the foregoing is that we find that the Claimant has not established a proper basis to warrant the grant of the Orders sought. We accordingly dismiss his Application dated 23. 9.2020 with costs in the cause.

Further, and so as to expeditiously dispose of this matter, we fix the mention for Pre-trials on 23. 3.2021.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 28TH DAY OF JANUARY, 2021.

Hon. B. Kimemia Chairperson Signed 28. 1.2021

Mr. B. Akusala Member Signed 28. 1.2021

Mr. R. Mwambura Member Signed 28. 1.2021

Miss Musyoka for Respondent: Present

Notice to issue to Claimant.

Hon. B. Kimemia Chairperson Signed 28. 1.2021