[2025] KECPT 191 (KLR)

Kingori v Kenya Bankers Sacco (Tribunal Case 970. E914 of 2023) [2025] KECPT 191 (KLR) (Civ) (30 January 2025) (Judgment)

Neutral citation: [2025] KECPT 191 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 970. E914 of 2023

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

January 30, 2025

Between

David Kingori

Claimant

and

Kenya Bankers Sacco

Respondent

Judgment

Claimant’s Case 1. The Claimant’s case is based on the Statement of Claim dated 30th October 2023 and supported by Claimant’s documents, witness statement, hearing on 13th August 2024 and submissions dated 5th of September 2024.

2. In his Statement of Claim, the Claimant prays for an order for permanent or temporary injunction restraining the Respondent from deducting Claimant’s guarantor’s savings to repay the Claimant’s loan and also reverse any amount deducted from the guarantors and be allowed to continue paying the loan balance at Ksh.10,000/= every month for 6 months and later Kshs. 15,000/= per month until payment in full.

3. The Claimant confirms that he was granted a super loan but defaulted due to Covid. He commits himself to repaying the loan balance. The Claimant has filed supporting documents and a letter dated 30th October 2023.

4. During the hearing of the claimant’s case on 13th August 2023, the Claimant confirms taking a super loan from the Respondent. He confirmed that he defaulted but he is ready to repay the loan balance.

5. The Claimant adopted his statement and documents as his evidence.

6. In his written submissions, the Claimant reinstates his prayers to have his guarantors refunded the deducted amount and also be allowed to repay his loan.

Respondent’s Case 7. The Respondent’s case is based on response to Statement of Claim dated 15th December 2023, Respondent’s documents, hearing of the Respondent’s case on 13th August 2024 and his submissions dated 3rd October 2024.

8. In the response to the Statement of Claim, the Respondent states that the Claimant was granted Kshs. 1,500,000/= on 8th July 2019.

9. The Respondent denies that the claimant has been servicing the loan regularly as per the Loan Agreement.

10. The respondent avers that the Claimant’s guarantors executed the loan contract which offered their deposits, shares and interest as the loan security.

11. The Respondent admits paragraph 14 and 15 of the claim averring that it is entitled and permitted to engage a debtor collector to recover loan arrears.

12. The Respondent denies paragraph 18 of the claim and states that the loan balance as at 5th of November 2023 is Kshs. 172,425. 51/= and amount growing and accruing interest.

13. During the hearing of the Respondent’s case on 13th August 2024, the Respondent was represented by Ms. Edna Mwangi, Manager at the Sacco.

14. She adopted their Replying Affidavit dated 15th December 2023 as her evidence in chief. She prayed for dismissal of the Claimant’s case with costs.

15. She averred that the Claimant was given notice before listing with CRB. She admitted receiving complaint letters regarding debt collection.

16. She also admitted that the Claimant had a mortgage at the time of applying for the loan but on clarification that there was no proper charging of the property.

17. In their written submissions, the Respondent reinstates that the Claimant was granted Kshs. 1,500,000/= by the Respondent to offset an earlier loan.

18. The Respondent avers that the Claimant defaulted in his loan repayment occasioning the guarantors to take the liability as per the Loan Agreement Form.

Analysis 19. We note that the Claimant admits being granted a loan of Kshs. 1,500,000/= which he defaulted in repayment. The claimant admits defaulting on the loan but contests the guarantors’ deposits being deducted to clear the loan. On the other hand, the respondent contends that it was n their right to deduct guarantors’ deposits as per the loan agreement.

20. While it was the Respondent’s right to debit the guarantors’ savings to repay the Claimant’s defaulted loan, we note that the Claimant testified that he was willing to repay his loan.

21. We also note that there were several efforts by the Claimant to the Respondent towards restructuring his loan repayment which were declined by the Respondent. We have taken note of the Claimant plea to repay his loan at Kshs.10,000/= per month.

22. As regards to the plea by the Claimant to have Kshs. 818,650/= guarantors’ savings reversed by the Respondent, we note that the Respondent was right in debiting guarantors’ savings since the loan the guarantors guaranteed was in default.

23. We also note that the Claimant’s prayers revolve around an injunction restraining the Respondent from attaching Claimant’s guarantors’ savings to repay his loan and also reverse the guarantors’ debited amounts.

24. As regards the Claimant’s plea to be allowed to repay his loan, we observe that nothing prevented him from repaying his loan. We find this prayer unreasonable.

Conclusion 25. The issues for this tribunal to determine are basically the following;(a)Was the Respondent right to debit the guarantors’ savings to repay the Claimant’s loan.(b)Were the Claimant’s rights violated with respect to the loan and guarantership for the Loan Agreement.

26. As regards the Respondent’s right to debit the guarantors’ account, we make reference to the Loan Agreement Form signed and executed by both the Claimant and the guarantors. Part D of this agreement is very explicit as regards the liability of the guarantors in the event of loan default.

27. We also note that the Respondent did several letters and emails to the Claimant and his guarantors regarding the loan default. Some of the letters filed in support of this situation are demand letters dated 17th August 2020, 5th November 2020, 18th August 2022 and 10th May 2021 and several emails on the subject.

28. It is this Tribunal’s position that the Claimant’s rights were not violated. Further the Claimant does not require this Tribunal’s orders to repay his loan.

29. In view of the foregoing, we find that the Claimant has not adequately prosecuted his case against the Respondent and claim fails and is hereby dismissed with costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025Hon. Beatrice Sawe Member Signed 30. 1.2025Hon. Fridah Lotuiya Member Signed 30. 1.2025Hon. Philip Gichuki Member Signed 30. 1.2025Hon. Michael Chesikaw Member Signed 30. 1.2025Hon. Paul Aol Member Signed 30. 1.2025Tribunal Clerk MutaiMs. Kariuki advocate holding brief for Oduor for the RespondentDavid Kingori - presentHon. J. Mwatsama Deputy Chairperson Signed 30. 1.2025