[2024] KECPT 1695 (KLR)
The Tribunal found that the respondent had not objected to the sum entered in the summary judgment, nor filed any defence, and his repayment history was minimal and sporadic. The respondent ceased payments voluntarily and failed to propose or agree to a repayment plan. The Tribunal held that there was no basis to...
Source-derived case information.
- Citation
- [2024] KECPT 1695 (KLR)
- Parties
- Applicant: Kemuna Sacco Limited; Respondent: Michael Gacheru Chege
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 847/E931 of 2022
- Procedural Posture
- Tribunal Application / Ruling on Notice of Motion for Injunction
- Outcome
- Application dismissed with costs to the claimant. Temporary injunction extended for 30 days to allow repayment; thereafter, claimant at liberty to auction the vehicle and goods if payment is not made.
- Judges
- BM Kimemia, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Injunctive Relief, Loan Recovery, Summary Judgment, Execution of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kemuna Sacco Limited
Applicant
Michael Gacheru Chege
Respondent
Procedural Posture
Tribunal Application / Ruling on Notice of Motion for Injunction
Legal Issues
- 1 Whether a permanent injunction should issue restraining the claimant from selling the respondent's motor vehicle and household goods.
- 2 Who should bear the costs of the application.
Ratio Decidendi
The Tribunal found that the respondent had not objected to the sum entered in the summary judgment, nor filed any defence, and his repayment history was minimal and sporadic. The respondent ceased payments voluntarily and failed to propose or agree to a repayment plan. The Tribunal held that there was no basis to grant a permanent injunction to restrain execution of the judgment, as the claimant was entitled to enforce the decree. However, the Tribunal extended the temporary injunction for 30 days to allow the respondent to settle the decretal sum in full, failing which the claimant would be at liberty to auction the proclaimed motor vehicle and goods. The application was dismissed with...
Court Disposition
Application dismissed with costs to the claimant. Temporary injunction extended for 30 days to allow repayment; thereafter, claimant at liberty to auction the vehicle and goods if payment is not made.
Orders
- The respondent's Notice of Motion application dated 26th June 2023 is dismissed with costs to the claimant.
- Temporary injunction restraining sale or interference with motor vehicle KCK 148G and household goods is extended for 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
Kemuna Sacco Limited v Chege (Tribunal Case 847/E931 of 2022) [2024] KECPT 1695 (KLR) (31 October 2024) (Ruling)
Neutral citation: [2024] KECPT 1695 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 847/E931 of 2022
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 31, 2024
Between
Kemuna Sacco Limited
Claimant
and
Michael Gacheru Chege
Respondent
(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)
Ruling
1. The matter for determination is a Notice of Motion dated 26th June, 2023 and sought for the following orders:i.Spent.ii.That pending the hearing and determination of this Application, an order of Permanent do issue restraining the Plaintiff, its agents and/or servants from selling, interfering with motor vehicle Registration No. KCK 148 G Nissan Matatu belonging to the Applicant pending hearing and determination of this Application.iii.That pending the hearing and determination of this Application, an order of Permanent Injunction do issue restraining the Plaintiff, its agents and/or servants from selling, interfering with Motor Vehicle Registration No. KCK 148 G Nissan Matatu belonging to the Applicant pending hearing and determination of this Application.
2. On 4th July, 2023, the Tribunal considered the Respondent’s Application dated 26th June, 2023 and gave directions which included order No. 5 and state:“That a Temporary Injunction do issue restraining the Claimant by themselves, their Servants and or agents from selling or interfering with Motor Vehicle Registration No. KCK 148 G Nissan Matatu pending mention on 17th October, 2023. ”
3. In order to make an informed determination of the Respondent’s Notice of Motion Application dated 26th June, 2024; Parties were directed to file Written Submissions, which they did.
4. Having read and examined the evidence on record for the Claimant and the Respondent, two (2) issues stand out for determination.a.Whether a Permanent Injunction can be issued to restrain the Claimant from selling the Motor Vehicle Registration No. KCK 148G together with the proclaimed household goods.b.Who should bear the cost.
5. In the instant Claim, Summary Judgement had been entered against the Respondent for repayment of Kshs. 1,518,423/= plus costs and interest thereby satisfying the provisions of Section 75 of the Cooperative Society’sAct no. 12 of 1997 {} which provide as follows:“Subject to Section 74, an order made pursuant to Section 73 for any moneys to be repaid or contributed to a Cooperative Society shall be filed with the Tribunal and shall without prejudice to any other mode of recovery be a civil debt recoverable summarily.”In the instant Case, the Claimant exercised her rights by processing execution of the judgement.
6. In addition, Order 10 Rule 4 of the Civil Procedure Rules 2010, speaks to a Claim for liquidated Sum of Money due from a Respondent and when the Respondent appear, the Tribunal shall enter judgement. Specifically the Provision state under order 10 Rule 4 that:“Where the Plain makes a liquidated demand only and the Defendant fails to appear on or before the day fixed in the Summons or all the defendants fail to appear, the Court shall enter Judgement against the Defendant/Defendants for the sum not exceeding the liquidated demand together with interest therein from the date of filing the suit at such rates as the Court thinks reasonable to the date of judgement and costs.”The Tribunal therefore exercised its mandate and entered Judgement when the Respondent failed to appear and defend the Suit noting that he was served in presence of his Secretary Manager who knew him.
Analysis. Issue 1. Whether a Permanent Injunction can be issued to restrain the Claimant from selling the Motor Vehicle Registration No. KCK 148G together with the proclaimed house hold goods. 7. The totality of the Respondent’s Notice of Motion Application is seeking for Temporary and Permanent Injunction for the sale of the Motor Vehicle Registration No. KCK 148G, without stating how he will pay the sum of Kshs. 1,518,432/= plus interest and costs.Notwithstanding the foregoing, the Tribunal issued a Temporary Injunction on 4th July, 2023 with an assumption that the Respondent would reach out to the Claimant and agree on a repayment plan.
8. Given that the Respondents have not shown any objection to the sum that has been entered in the Summary Judgement, neither did he file any Defence; we would not tamper with our Judgement in order to open a window for filing a Defence by the Respondent.We are not persuaded to allow a Permanent Injunction in the Application in the absence of an agreed repayment plan.
9. Under Paragraph 5 of the Supporting Affidavit dated 26/6/2023, the Respondent state that he has been paying the Loan in question. A quick look at his Statement of Repayment which formed part of his list of documents shows very minimal and sporadic payments which does not add up to a monthly payment of Kshs. 45,300/= as shown in the Loan Application from under the “For official use only” clause.
10. To worsen the situation, the Respondent out of his own volution stopped further repayment of the loan after paying Kshs. 15,925/= on 2/6/2023. This kind of lethargy creates doubt in our minds whether the Respondent is serious in repaying the Loan. On this note, we decline to issue a Permanent Injunction but rather extend the temporary injunction for 30 days from the date of this ruling pending the repayment of the decretal sum in full. In the event that the Respondent does not repay the decretal sum within 30 days, then the Claimant shall be at liberty to auction the proclaimed Motor Vehicle and the goods.
Issue 2. Who should bear the cost? 11It is trite law that costs follow the event. In the instant case, we find that there is no merit to allow the Application as filed. Therefore, we award costs to the Claimant.
12The upshot of the foregoing on the Respondents Notice of Motion application dated 26. 6.2023 is dismissed with costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 10. 2024HON. PAUL AOL MEMBER SIGNED 31. 10. 2024Tribunal Clerk JemimahKimani for ClaimantNo appearance for RespondentHON. B. KIMEMIA CHAIRPERSON SIGNED 31. 10. 2024