[2021] KECPT 552 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.297 OF 2019

JOSEPH MURIUKI MWANIKI.......................................CLAIMANT

VERSUS

FORTUNE SACCO SOCIETY LIMITED..................RESPONDENT

JUDGMENT

1. The suit was brought by a statement of claim dated 4th June 2019and filed on6th June 2019.

The Claimant was a member of the Respondent Sacco and now his claim against them is for :

a. Have his name cleared and or listed positively by the CRB.

b. Render account of proceeds and the household and livestock impounded on 18. 11. 2011

2. The Respondents filed a Statement of Defence dated 24th June 2019on25th June 2019denying the averments by the Claimant and instead the Claimant is the one who owes them a sum of Kshs.176,961. 26/=.

3. Analysis of the Case

Claimant’s Claim

The Claimant testified on 12. 11. 2020 and gave evidence to the following extent.

That he was a member of the Respondent Account Number 301/25/3324 Kirinyanga District Farmers Sacco.

He applied for a loan of Kshs.28,500/=.

In the year 2001 with repayment period of 3 years at 17% interest per annum.

The interest of Kshs.4,845/= interest x 3 years amounted to Kshs.14,435/=.

Total payable by Claimant was Kshs.43,035/- KTDA was to deduct the money and remit the receipt. In the same year the Respondents attached my property. The claimant requested for a statement of Account from 2001 but never was availed to him.

His contention was that he paid for the loan through KTDA and cleared it September 2001.

All bonus cash from the Claimant’s tea farm was forwarded to Respondent. The loan was due in 2004 however, he paid within 90 days that is 31. 9.2001.

Claimant claimed Respondent owed him Kshs.106,119. 25/= plus proceeds of sale of his attached property.

4. Respondent’s Case

RW1 John Mwangi testified on behalf of the Respondents. He is the head of credit. He adopted his witness statement filed on 20. 8.2020 as evidence-in-chief. He acknowledged Claimant applied for a loan in June 2001. The payments paid by the Claimant are not reflected in the Statement of Account.

He further stated Installments that are unpaid are charged interest. He confirmed sale of Claimant’s goods. However, stated he did not know how much was recovered from the sale.

RW1 stated the Claimant’s Account was in arrears and because of the status the Claimant was listed in CRB.

While testifying the Respondents informed the Tribunal they are willing to delist the Claimant from the CRB and write off the Claimant’s loans.

5. The issues for determination are as follows:

a. Did the Claimant owe the Respondent any money?

b. Is the Claimant owed any cash by the Respondent?

c. Was it wrong for the Respondent to list the Claimant with CRB?

6. Issue 1:

Did the claimant owe the Respondent any monies?

From the evidence on record it is clear the Claimant took a loan in the year 2001.

What is in contention is if the amount was paid off to its totality.

The Respondents herein attached the Claimant’s goods herein in the November 2011 for the loan arrears despite the Claimant’s claim of having no arrears and having paid his dues.

The goods attached therein were sold and the Respondents went quiet after the sale. No accountability was given to the Claimant and even on cross examination RW1 stated he does not know how much was collected on sale of the Claimant’s good.

Not knowing if the Claimant’s debt was fully serviced if at all by the sale is in bad taste. With this in mind we find the Claimant to have no balance in his debts with Respondent and if he did the sale of his goods in 2011 ought to have sufficient settled the debt the reason why the Respondents went silent.

7. Issue 2:

Is the Claimant owed any cash by the Respondent

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8. Issue 3:

Was it wrong for the Respondent to list the Claimant with Credit Reference Bureau.

The Claimant claims in January 2018 when he went to get a loan from a financial institution the same was declined because he was listed as a defaulter. He was unable to get a loan.

The Respondent in evidence stated it was automatic for loan defaulters in their membership to be listed in CRB.

The Claimant followed up to find out the position and why he was listed but the Statement of Account was not availed to him.

9. We find it ironic, for the Respondents to claim they are willing to write off the Claimant’s debt and have his name removed from CRB after damage has been done.

Thus it was negligent and in bad taste for the Respondent to have Claimant listed as a defaulter knowing very well the repercussions and only for them to state they are willing to write off the Claimants debt and have his name removed from CRB.

Question is: What Debt caused Claimant to be listed in CRB?

One that Claimant had cleared and even if he had not, they sold his goods to recover the cash owed if any.

10. In the final analysis judgment is entered in favour of the Claimant against the Respondent as follows:

a. An order to the Respondent to have the Claimant credit .....listed as positive in the Credit Reference Bureau .

b. Accurate Account of proceeds of sale impounded on 18. 1.2011 is not viable.

c. Costs to the Claimant and interest at court rates.

Judgment signed, dated and delivered virtually this 6th day of May, 2021.

Hon. B. Kimemia Chairperson ....................................

Hon. J. Mwatsama Deputy Chairperson ....................................

Mr. P. Gichuki Member ....................................

Tribunal Clerk .............................