[2024] KECPT 972 (KLR)

Kiarie v Nakuru Teachers Housing Cooperative Society Ltd; Cooperative Bank of Kenya Ltd & another (Interested Parties) (Tribunal Case 250 of 2021) [2024] KECPT 972 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 972 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 250 of 2021

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

May 30, 2024

Between

Daniel Kinuthia Kiarie

Claimant

and

Nakuru Teachers Housing Cooperative Society Ltd

Respondent

and

Cooperative Bank of Kenya Ltd

Interested Party

Teacher Service Commission

Interested Party

Judgment

1. The matter for determination is a Statement of Claim dated 10th August 2020. In the Statement of Claim, the Claimant avers that he is still a member of the Respondent. The Claimant avers that the Respondent’s responsibility is to purchase land and sell it at affordable prices to its members. It is the Claimants claim that in November 2011, the 1st interested party advanced a loan of Kshs. 1,710,000/= to him, to be paid over 84 months. The amount to be paid was Kshs. 2,789,304/-. The repayment was to be deducted directly from his salary. He avers that on 24th July 2020 the Respondent issued a statement suggesting that the loan balance is Kshs.1,556,314. 07/=. He feels that the demand is illegal hence this case. The claimant, therefore, prays for:a.Adeclaration as to the Claimants indebtedness.b.General damagesc.Costs of this suit plus interestd.Any other relief the Tribunal may deem fit.The Claimant filed a Witness Statement and a List of Documents in support of her claim.

2. The Respondent filed a Statement of Defence dated 19th November 2020. In their response, the Respondents aver that the loan that the Cooperative Bank advanced the Claimant was not direct but through the Respondent as per a Memorandum of Understanding between the Bank and the Respondent on 27th August, 2004. They further state that the Claimant defaulted in some instalments leading to the accrual of interest leading to the balance of Kshs. 1,556,314. 07/=.

Counterclaim 3. The Respondent's counterclaim as against the Claimants as follows;a.Kshs. 1,556,314. 70/=b.Costs of the suit and interest.That the Claimant (now Respondent) was advanced a loan whose repayment was to be Kshs. 33,206/= per month, but has been paying only Kshs.24,000/= per month, and thus affect the Respondent (now Claimant) and the balance remaining is Kshs. 1,556,314. 17/=. The Respondent’s (now Claimant’s) claim against the Claimant (Now Respondent) is for:a.Kshs. 1,556,314. 70/=b.Costs of the suit and interest.

4. During the hearing, the Claimant did not appear. There was proof of service through Affidavit of Service by one Nancy Njoroge sworn on 8th September 2023. This Tribunal was satisfied that service was done. The Claimant’s case was dismissed and the Respondent proceeded to be heard on the Counter-claim.During the hearing of the Counter-claim, one Joshua Mbuthia Kinuthia, a ‘leader’ in the Respondent testified. He reiterated the contents of the Counter-claim and urged this court to enter judgment against the Claimant on the amount of prayed in the Counter-claim.

5. The Respondent (now turned) Claimant filed submissions for the Counter-claim.

Analysis 6. This Tribunal has taken note of the pleadings filed by the parties as well as the evidence adduced during the hearing. It is not in dispute that the Claimant (now Respondent) was a member of the Respondent (now Claimant). It is also not in dispute that the second respondent extended a loan facility to the claimant (now Respondent), and the money was paid through the Respondent (Now Claimant). It is also not in dispute that the Claimant (now Respondent) was to repay the loan through installments of Kshs. 33,206/- but the Claimant (now Respondent) ended up paying Kshs. 24,000/- per month because of the 1/3 rule on loans. What is in dispute is the amount due. The Respondent (now Claimant) claims that the Claimant (now Respondent) made payments and the amount that remained unpaid was Kshs. 170,304/= that by the time of filing this suit had attracted penalties of Kshs. 1,129,001/= making a total of Kshs. 1,299,305/- according to the submissions. However, this amount is different from the amount in the counterclaim which was the amount claimed during the hearing amounting to Kshs. 1,556,314. 07/=. The Claimant (now Respondent) did not respond to the counterclaim, did not appear at the hearing and neither did he file submissions. The Respondent (now Claimant) filed their submissions with a statement that shows how the Kshs. 170,304/=, and Kshs. 1,129,001/- penalty is arrived at and therefore we will work with this figure. Is the Respondent (now Claimant) entitled to this amount?

7. We find that the Respondent (now Claimant) has proved this amount on a balance of probabilities since it can clearly be seen from the statements how the Respondent came up with the amount. We also find that the InDuplum rule will not apply in this case, because from the statement, the penalties accrued from the arrears starting from 2012 and not solely from the Kshs. 170,304/= claimed as due. Claimant’s claim having been dismissed for non-attendance.

8. The upshot of the above is that we find merit in the Respondent's (now Claimant) counterclaim. We order as follows:a.Judgement is entered in favour of the Respondent (now Claimant) as against the Claimant (now Respondent) for Ksh. 1,299,305. 00c.Costs of suit and interest from the date of filing suit at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH* DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 5.2024HON. PAUL AOL MEMBER SIGNED 30. 5.2024Tribunal Clerk JonahNo appearance by parties.Judgment delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024