[2021] KECPT 526 (KLR)
The Tribunal found that the respondent's statement of defence at paragraph 2 constituted a clear and unequivocal admission of owing the claimant Ksh200,020 exclusive of share capital. The Tribunal noted that share capital is generally not refundable, explaining the difference between the amount claimed and the...
Source-derived case information.
- Citation
- [2021] KECPT 526 (KLR)
- Parties
- Applicant: Joseph Thangichu Kamau; Respondent: Teleposta Sacco
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 281 of 2020
- Procedural Posture
- Notice of Motion / Ruling on Application for Judgment on Admission
- Outcome
- judgment entered for claimant on admission for Ksh200,020 plus costs; mention for unadmitted amount set for further directions
- Legal Topics
- Judgment on Admission, Refund of Deposits, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Thangichu Kamau
Applicant
Teleposta Sacco
Respondent
Procedural Posture
Notice of Motion / Ruling on Application for Judgment on Admission
Legal Issues
- 1 Whether the respondent has made a clear and unequivocal admission of owing the claimant Ksh200,020 exclusive of share capital.
- 2 Whether judgment on admission should be entered in favor of the claimant for the admitted amount.
- 3 Whether costs of the application should be awarded to the claimant.
Ratio Decidendi
The Tribunal found that the respondent's statement of defence at paragraph 2 constituted a clear and unequivocal admission of owing the claimant Ksh200,020 exclusive of share capital. The Tribunal noted that share capital is generally not refundable, explaining the difference between the amount claimed and the amount admitted. As the respondent did not file a statement of account to clarify the share capital, the Tribunal limited its judgment to the admitted sum. Consequently, judgment was entered in favor of the claimant for Ksh200,020 plus costs of the application, as there were no triable issues regarding the admitted amount.
Court Disposition
judgment entered for claimant on admission for Ksh200,020 plus costs; mention for unadmitted amount set for further directions
Orders
- Judgment is entered in favor of the claimant against the respondent for Ksh200,020.
- The respondent shall pay the costs of this application to the claimant.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.281 OF 2020
JOSEPH THANGICHU KAMAU................................................................CLAIMANT
VERSUS
TELEPOSTA SACCO.............................................................................RESPONDENT
RULING
The matter for determination is a Notice of Motiondated 7th October 2020 filed on 8th October 2020 seeking the following orders; -
1. Judgment on admission be entered in favor of the Claimant/ Applicant in the amount of 200,020/= plus costs and interest.
2. Cost of this Application be awarded to the Claimant.
The Application is based on the grounds on the face of the application and supported by affidavit of Odhiambo Geoffrey Gengadeponed on 12th September 2020.
The Application is opposed vide a Replying Affidavit of Samwel Maumbe, a senior staff of the Respondent deponed on 27th October 2020.
The Application was ordered to be dispensed with by way of written submissions. Claimant filed their submissions on 19th/ November /2020 and the Respondent filed theirs on 1st February 2021.
The gist of the Application is that the applicant seeks judgement in admission of Ksh200,020 plus costs and interest.
The applicant submitted that the Respondent in paragraph 2 in their statement of defence dated 18th September 2020 admitted owing the claimant Ksh200,020 exclusive of share capital. The admission was unequivocal and to allow this matter to proceed to trial will be a waste of judicial time since, at the face value the said defences raises no triable issues.
That, further, vide the Replying Affidavit the Respondent made the same admission hence the same be allowed as an admission.
The Respondent in their written submissions confirmed that the Respondent had not refused to refund but that they were facing financial constraints. That they were open for negotiations with the claimant in order to settle the matter amicably.
We have perused the pleading, documents, affidavits and note that the claimant`s claim is for a refund of Ksh219,020. We have also noted paragraph 2 of the defence as filed. An admission must be clear and unequivocal hence the statement of the Respondent in the defence at paragraph 2 indeed is construed to confirm that the claimant`s deposits are Ksh200,020 exclusive of share capital. We note that share capital is not generally refundable hence the reason why there is a difference between amount claimed and amount admitted. The Respondent did not file their statement of account hence we are not able to determine the amount of share capital as submitted.
In the circumstances therefore, we find that the statement of defence at paragraph 2 admits an amount of Ksh200,020. We accordingly enter judgement in favor of the claimant against the Respondent for the admitted amount of Ksh200,020 in the suit plus the cost of the application.
Hon. B. Kimemia Chairperson Signed 27. 5.2021
Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021
Mr. P. Gichuki MemberSigned 27. 5.2021
Tribunal clerk Leweri
Genga Advocate for claimant/Applicant : Present
Maumbe on behalf of Respondent : Present
Mention on 27. 7.2021 for further direction for the unadmitted amount.
Hon. B. Kimemia Chairperson Signed 27. 5.2021