[2025] KECPT 258 (KLR)

Kanisa Regulated Non-WTD Savings and Credit Cooperative Society Limited v Martin & another (Tribunal Case 855. E1075 of 2023) [2025] KECPT 258 (KLR) (Civ) (29 April 2025) (Ruling)

Neutral citation: [2025] KECPT 258 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 855. E1075 of 2023

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

April 29, 2025

Between

Kanisa Regulated Non-WTD Savings and Credit Cooperative Society Limited

Claimant

and

Kanisa Mutuku Martin

1st Respondent

Elizabeth Mueni Ndeleva

2nd Respondent

Ruling

1. This ruling dispenses the Chamber Summons Application dated 4th February 2025. The Application is supported by an affidavit sworn by the Applicant Elizabeth Mueni Ndeleva and brought under Order 1 Rule 14 of the Civil Procedure Rules, Sections 3A of the Civil Procedure Act and all other enabling provisions of the law. The Application seeks the following orders:a.That this Honourable court be pleased to strike out the claimant’s suit as against the 2nd respondent/applicant.b.That the cost of this application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: the Claimant’s Claim against the second Respondent seeks mandatory orders compelling the 2nd Respondent to withdraw caveat registered against Motor vehicle Registration number KCZ 759E and to also compel the 2nd Respondent to produce the subject motor vehicle. The applicant avers that the 2nd Respondent has since withdrawn the caveat and that she is no longer the registered owner and therefore cannot produce.

3. A brief background of the matter is that the Claimant instituted this claim to recover defaulted amounts loaned to the 1st Respondent, and guaranteed, by among other things, the 2nd Respondent’s motor vehicle registration number KCZ 759E to the tune of Ksh. 1,400,000. 00/=.

4. The Claimant did not oppose the application.

Analysis 5. This Tribunal has noted the application. From the fact of the Claim, it is not in dispute that the Claimant advanced a loan to the 1st respondent. The Claimant and both Respondents acknowledge this fact. It is also not in dispute that the 2nd Respondent’s motor vehicle registration number KCZ 759E was used as a collateral for the 1st Respondent’s loan. The Claimant and both the Respondent’s acknowledge this fact. Finally, it is not in dispute that the 1st Respondent defaulted in the said facility. In the Statement of Defence, the claimant avers that he failed to keep up with the repayments reason being that he resigned from employment.

6. The question before this Tribunal is whether the Applicant is entitled to the reliefs sought, to wit striking out the Claimant’s suit as against them. The law on striking out a party in a suit is Order 1 Rule 10 (2) of the Civil Procedure Rules also provides that: -“The court may at any stage of the proceedings, either upon or without the application of either part, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendants, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”

7. The applicant has not brought this application for misjoinder. Rather that the facts have since changed and that the 2nd Respondent be discharged. In our opinion, this would call for interrogating the evidence and determining that this is the position for a fact.

8. Madan. J.A in the case of DT Dobie and Company (K) Ltd v Joseph Mbaria Muchina & Another [1982] KLR 1 stated that-;“The power to strike out should be exercised only after the court has considered all the facts, but it must not embark on the merits of the case itself as this is solely reserved for the trial judge.

9. In the present case, for this court to determine the present application, this court would be called upon to interrogate evidence on whether the 2nd respondent has indeed lifted the caution against the subject motor vehicle, and to determine whether the ownership of the motor vehicle has changed. This court would also be called upon to look at the loan agreement to determine the circumstances under which the motor vehicle used as security. All these are matters of evidence. It is our view that the application is premature as evidence can only be tendered at the trial. It is our view that the merits and demerits of the claims against the 2nd Defendant cannot be summarily decided through this application.

10. In the upshot we find that the Applicant’s Chamber summons dated 14th February 2025 lacks merit and is hereby dismissed with costs.Mention for Pre-trial directions o 3. 6.2025

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 4.2025TRIBUNAL CLERK JEMIMAHMuema advocate holding brief for Mrs. Kimani for ClaimantMrs. Kagendo holding brief for Gitonga advocate for 2nd Respondent/applicantMs. Muema advocate- The application dated 20. 3.2025 can be marked as spentMs. Kagendo advocate- No objectionOrder:Application dated 20. 3.2025 is hereby marked as spent.Mention for Pre-trial directions on 3. 6.2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025