[2021] KECPT 496 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.30 OF 2016

JUSTUS NTABO GEKONE............................................................CLAIMANT

VERSUS

EMBASSAVA SACCO............................................................. RESPONDENT

JUDGMENT

1. The claim herein is dated 1st February 2016, and filed in court on 3rd February, 2016. The Claimant being a member of the Respondent – Embassava Sacco Society Kenya took a loan which while making payments the Respondent who were managing the said motor vehicle misappropriated the funds and frustrating him in operation of his motor vehicle. The Claimant now seeks for :-

a.A refund of Kshs.1,838,608

b.A permanent injunction order restraining Embassava Sacco officials from harassing the Claimant’s workers and accord the Claimant equal rights to enjoy the services of the Respondent.

c.Costs of the suit.

d.Any other reliefs this Honourable court may deem fit and expedite to grant.

2. The Respondents on their end filed a defence dated 4th March, 2016 and filed on 7th March, 2016. Respondent further amended their Defence and filed an Amended defence and counterclaim dated 8th September, 2017. The Respondent counter claim prayers were for:

a. Kshs.1,665,534. 60/=

b. Costs

c. Interests on (a) and (b) above

d. Any other relief this Honourable court may deem just and proper to grant.

They denied the Claimant’s claim of frustrations in operating his motor vehicle KBS 246V and misappropriation of funds and further denies owing the Claimant Kshs.1,838,608/= as claimed.

3. CLAIMANT’S CASE AND EVIDENCE

Claimant testified on 3. 7.2019 and adopted his witness statement filed on9. 4.2018 as his evidence- in- chief. He stated he applied for a loan of Kshs.3. 3Million as a member of Respondent Sacco. He had savings of Kshs.1. 1.Million and thus qualified for a loan that was 3 times his shares.

He testified only Kshs.2. 2.Million was approved and what was dispatched to him was Kshs.1,169,072/= and the other Kshs.1,030,928/- was withheld for unknown reasons.

4. The Respondents started deducting the installments based of the Kshs.2. 2.milliion that had been approved. He complained to the management with no results and later at the Annual General Meeting. He later came to learn that his shares were repossessed and told his motor vehicle had accumulated debt from poor performance.

5. The tabulation done by the Respondents gave no receipts for the expenditures. The Claimant Further claimed some expenses by the Respondent for his account were unaccounted for:

1. Kshs.436,946/- was not remitted

2. Kshs.1, 138,090/- unsupported expenses for the period of October 2012 to December 2012.

3. Kshs. 1,303,055/- unsupported expenses for the period of March 2013 to June 2013.

The Claimant’s claim is for Kshs.2,868,792. 50/= as per the witness statement and acknowledged if there is any money owing to the Respondent it is the school fees loan he had taken. He was not to pay any money to Respondent because the motor vehicle was being managed by Respondent and it was generating income to pay the loan.

6. RESPONDENT’S CASE AND EVIDENCE

Respondent gave evidence on 2. 9.2020 and one James Kabue the Accountant of Respondent adopted his witness statement dated 20th April,2018 and filed on 8th May,2018 as evidence- in -chief.

In his evidence he stated Claimant took 3 loans-

(i) For purchase of motor vehicle KBS 246V bought and Sacco was a guarantor..

(ii) School fees loan Kshs.120,000/=

(iii) Disputed loan of Kshs.3. 3.Million

He stated the Claimant demanded to be given the motor vehicle the Respondent had guaranteed before the 36months repayment period was over. We furnished him with monthly reports of the motor vehicle and asked him to clear the loan first.

The loan balance of Kshs.1,030,000/- (deficit) was used to pay balance of motor vehicle KBS 246V and it was paid to Equity Bank.

All his savings were transferred to the loan and he contributed Kshs.40, 000/= cash against the loan.

7. The counterclaim is for Kshs.1,665,534. 60/= as at March 2015, the Claimant took over the Management of the motor vehicle, however before this time he had hired his own crew who were accountable to him. As at March, 2015 the loan balance was Kshs.662, 000/=.

8. ISSUES TO BE DETERMINED

1. How much loan was advanced to Claimant by Respondent in total?

2. How much was paid by claimant?

3. Was the Kshs.1. 030,928/= not remitted to Claimant as loan accounted for?

4. Is the prayer for permanent injunction restraining the Respondents officials from harassing the claimant’s workers and accord the claimant equal rights to enjoy the services of the Respondent?

5. Is the counter claim of Kshs.1,665,534. 60/= proved?

9. ISSUE 1. HOW MUCH LOAN WAS ADVANCED?

From the evidence adduced the money advanced to the Claimant is Kshs.1, 169,072/=.

No sufficient reason is given by Respondents for not remitting the entire loan as advanced to the Claimant of Kshs.2,200,000/=.

ISSUE 2: HOW MUCH WAS PAID BY CLAIMANT?

The Claimant received Kshs.2, 200,000/= from the Respondent.

ISSUE 3: WAS THE KSHS.1. 030. 928/= NOT REMITTED TO CLAIMANT AS LOAN ACCOUNTED FOR?

We take note of the fact that the balance of the loan approved Kshs.1. 030,918/= was used to pay off the loan balance of motor vehicle KBS 246 V when the claimant withdrew the vehicle from management of the Respondent.

ISSUE 4: PRAYER FOR PERMANENT INJUNCTION

A permanent injunction is a final order of a court that a person or entity refrain from certain activities permanently or take certain actions (usually to correct a nuisance) until completed.

Generally an injunction is sought in addition to other remedies.

In Nguruman Limited – vs- Jan Bonde Nielsen & 2 others, CA NO.77 of 2012;[2014] eKLR the Court of Appeal reiterated the conditions to be met by a litigant who seeks injunctive relief as follows:

“An Interlocutory Injunction Application, the Applicant has to satisfy the triple requirements to;

a. Establish his case only at a prima facie level,

b. Demonstrate irreparable injury if a temporary injunction is not granted; and

c. Ally any doubts as to (b) by showing that the balance of convenience is in his favour.....”

These are the 3 pillars on which rest the foundation of any Order of injunction, interlocutory or permanent. It is established that all the above 3 conditions and stages are to be applied s separate, distinct and logical hurdles which the Applicant is expected to summon sequentially.....

In the case of LucyWangui Gachara – vs- .....Okembe Lore [2015] eKLR.

“...the court will not grant a mandatory injunction if the damage feared by the plaintiff is trivial, or where the detriment that the mandatory injunction would inflict is disproportionate to the benefit it would”

In the case at hand can the Claimant be said to have established a prima facie case, having demonstrated the likelihood of irreparable damage that is loss of income that has warranted the grant of the injunctive order.

The Claimant having removed his motor vehicle from the Respondent’s management, would he still be eligible for this remedy of permanent injunction?

In light of the above Claimant to safeguard his livelihood requires protection by court.

10. UPSHOT

After analysis of the evidence by both Claimant and Respondent we find the following:-

(i) A refund of Kshs.1,838,608/= is not proved however, the Claimant is entitled to Kshs.662,000/= amount he paid to clear loan balance.

(ii) A Permanent injunction Order is granted restraining Embassava Sacco officials from harassing the Claimant’s workers and operations of the Claimant’s motor vehicle.

(iii) The Counter claim of Kshs. 1,665,534/= fails however, Respondent can follow up on the school fees loan and refund of Insurance money Kshs.89,587. 80/=.

(iv) Each party to bear their own costs.

Judgment signed, dated and delivered virtually this 30thday of March, 2021.

Hon. B. Kimemia Chairperson Signed 30. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 30. 3.2021

B. Akusala Member Signed 30. 3.2021

Mwema holding brief for Marare for Claimant

No appearance for the Respondent.

Hon. J. Mwatsama Deputy Chairperson Signed 30. 3.2021