[2024] KECPT 1180 (KLR)

Kiambi v Motume (Tribunal Case E663 of 2023) [2024] KECPT 1180 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1180 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E663 of 2023

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

July 25, 2024

Between

Beatrice Wangari Kiambi

Claimant

and

Paul Anunda Motume

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.)

Judgment

1. The matter for determination is a Statement of Claim dated 4th September 2023. In the Statement of Claim, the Claimant claims that both she and the Respondent were members of Stima Sacco. The Claimant avers that the Respondent when employed by Stima Sacco took a loan which he defaulted he his employment was terminated. Upon the termination of his employment, the Sacco started deducting the instalments from the claimant because she was a guarantor of the Respondent. The Claimant is aggrieved and prays fora)That the Respondent be ordered to resume his loan repayment with Stima Sacco.b)That the Respondent be ordered to refund all loan instalments paid on his behalf by the Claimant at Stima Sacco, at the rate of Kshs. 8,476/= per month with effect from January, 2023, until he resumes the loan repayment or until the loan of Kshs. 490,123. 94/= is paid in full.c)Costs of the suit and interestd)Any further or better relief that the Honurable tribunal may deem fit to grant.The Claimant filed a witness statement and a List of Documents in support of her claim.

2. The Respondent did not enter an appearance or file any response to the Claim. The Claimant requested for judgement on 6th October 2023 an interlocutory judgment was delivered on 30th January 2024 in favour of the Claimant as against the Respondent. The matter was set for formal proof on the 20th of June 2024.

3. During the formal proof hearing, the Claimant adopted her witness statement and produced her documents. She appealed to the court to order the Respondent to repay her loan and refund the Claimant for the amounts that had been deducted from her since January 2023.

Analysis 4. The question before this Tribunal is whether the Claimant is entitled to the relief sought. The Claimant’s claim is for a refund of the instalments that were deducted from her to repay the Respondent’s loans.

5. The Claimant testified in formal proof, and we ask ourselves, what is formal proof?

6. In the case of Samson S. Maitai & Ano….Vs…African Safari Club Ltd & Ano. (2010) eKLR, the Court held that:-“…..I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.

7. Therefore, even in cases where the other party does not enter appearance and does not file a Statement of Defence, the claimant still has the burden of adducing evidence to prove his case. The burden of proof does not leave the claimant until that burden is discharged. The purpose of formal proof in this case, was for the Claimant to prove his case, to wit, that she is entitled to be refunded the money deducted from her as a guarantor.

8. The Claimant has produced documents that show that indeed the Sacco initiated deductions from the Claimant to settle the Respondent’s arrears. The question before the Tribunal is whether those deductions are justifiable. The Claimant in her Claim confirmed that indeed she is a guarantor.

9. A contract of guarantee has been defined “The Law of Guarantees” by Geraldine Andrews & Richard Millet 2nd Edition, at page 156 provides as follows:“A contract of guarantee is an accessory contract, by which the surety undertakes to ensure that the principal performs the principal obligations. It has been described as a contract to indemnify the Creditor upon the happening of a contingency namely the default of the principal to perform the principal obligation. The surety is therefore under a secondary obligation which is dependent upon the default of the principal and which does not arise until that point.

10. This Tribunal has also held severally that Guarantors are persons under secondary obligations who come in to satisfy the debt when the principal debtor has failed to service the loans. It is not in dispute that the Claimant was a guarantor, and that she stepped in to pay the defaulted sum. Since the contract of guarantee is not disputed, this court will not interfere with the deductions that the Sacco is rightfully making under the contract of guarantee.

11. However, when the Sacco has recovered its monies from the guarantor, the guarantor can enforce her rights as against the defaulter. The Claimant claims that the Sacco deducted Ksh 8,476. 00/= from her salary every month starting January 2023. This amount is not disputed and the Claimant produced documents in support of her claim. Without any evidence to the contrary, this court finds the documents sufficient.

12. The Upshot is that we find merit in the Claimant’s Claim, and make the following ordersa.A refund of Ksh. 101,712. 00/= by the Respondent to the Claimant, being the amount deducted so far from the Claimant.b.The Claimant is awarded costs of this claim together with interest at Tribunal rates from July 2023 till payment in full.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. Hon. B. Kimemia Chairperson Signed 25. 7.2024Hon. J. Mwatsama Deputy Chairperson Signed 25. 7.2024Hon. Beatrice Sawe Member Signed 25. 7.2024Hon. Fridah Lotuiya Member Signed 25. 7.2024Hon. Philip Gichuki Member Signed 25. 7.2024Hon. Michael Chesikaw Member Signed 25. 7.2024Hon. Paul Aol Member Signed 25. 7.2024Tribunal Clerk JonahBeatrice Wangari ClaimantNo appearance for Respondent.Hon. B. Kimemia Chairperson Signed 25. 7.2024