[2020] KECPT 84 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT KISUMU

TRIBUNAL CASE NO. 514 OF 2017

KODEKA NICHOLUS ODEKO.........................................................CLAIMANT

VERSUS

MENGER SOLUTIONS SAVINGS & CREDIT

CO-OPERATIVE SOCIETY LIMITED.........................................RESPONDENT

RULING

We have carefully considered the submissions of both parties and all the orders issued on 14. 11. 2019. On that date, the Judgment Debtor was brought under a warrant of arrest and confirmed that he had recorded a consent previously at the Police Station.

The consent was brought to the attention of the Tribunal on the same date and confirmed by the judgment debtor himself before the Tribunal.

We have seen the consent dated 6. 11. 18 signed by both parties. We have also seen the cheque number 000049 for Kshs.40,000. 00 returned due to insufficient funds. This is the same cheque that was issued in the presence of the Tribunal on 14. 11. 2019 and basis of which the Judgment Debtor was released and the warrant of arrest suspended till 22. 11. 2019.

On 22. 11. 2019, the judgment debtor failed to appear in court prompting re-issuance of the warrant of arrest. It is therefore clear that the warrant of arrest was properly issued by the Tribunal against the said Fredrick Marembo, the Judgment Debtor herein and who is also the Chairman of the Respondent.

We have noted the submission of the advocate of the Judgment Debtor on the execution against the judgment debtor in person and that the averment that execution by way of warrant of arrest under section 38 of the Civil Procedure Act (cap 21) was not followed.

We have also noted the response of the Judgment Creditor confirming that indeed the judgment debtor is the chairman of the said Sacco and that he entered into an agreement with the judgment creditor on the mode of settlement of the decretal amount. The judgment debtor in the presence of the Tribunal issued the said bounced cheque and was set at liberty after promising to clear the installments of Kshs.36,323. 00 on or before 22. 11. 2019.

The provisions of section 28 (3) of the Co-operative Societies Act (Cap 490) Laws of Kenya is clear that the committee shall be the governing body of the society and is vested with powers to enter into contracts, institute and defend suits and other legal proceedings brought in the name of or against the Co-operative Society and do all other things necessary to achieve the objectives of the Co-operative Society.

The Judgment Debtor in his capacity as the Chairman of the management committee is therefore mandated and obligated under section 28 (3) of the Act to act on behalf of the Respondent. The judgment debtor entered into an agreement/consent on the mode of payment/payment plan with the Judgment Creditor and indeed confirmed that position before the Tribunal. He went ahead to draw a cheque in further pursuit of the agreement/consent in favour of the Judgment Creditor. The Judgment Debtor therefore should not be seen to avoid responsibility for the Respondent herein.

The Judgment Creditor is owed by the Respondent, a fee acknowledged by the Judgment Debtor/Chairman of the Respondent. The Judgment debtor has on previous occasions, been arrested and committed himself to pay any amount owed to the judgment creditor. In the circumstances, we thereof find the submissions by the advocate for the judgment debtor not merited and without any standing and/or basis under the law. We therefore dismiss the Applications for lifting of warrants and find that the warrant of arrest issued on 22. 11. 2019 was issued procedurally against Fredrick Marembo, Chairman of the Respondent. We find that section 38 of Civil Procedure Act is not applicable in the circumstances owing to the fact that this is a Co-operative Society governed by the Co-operative Societies Act.

We find that the Judgment Creditor has incurred expenses for arrest of the Judgment Debtor as per the documents filed on 20. 11. 2019 that is, arrest expenses for 6th November 2018, amounting to Kshs.10,000. 00/=, arrest expenses for 13. 11. 2019 amounting to Kshs.40,000. 00/=, unpaid cheque commission of kshs.2400/=. Total expenses as per the application filed on 12. 11. 2019 is Kshs.47,400.

We have noted the receipts enclosed therein and award the said expenses. In total Kshs.47,400/= plus costs for arrest for 12th February 2020 assessed at Kshs.10,000/-. Total accrued and assessed expenses is Kshs.57,400. 00 plus the balance of the decretal amount being Kshs.228,970. 80/=. The warrant dated 11. 11. 2019 is for Kshs.393,970. 80/= less acknowledged received amount of Kshs.165,000. 00/=. Balance is Kshs.228,970. 80/= plus assessed cost of Kshs.57,400/= total Kshs.286,370. 80/=.

The judgment debtor has not made any proposals on payment of the decretal amount. We note that he has adamantly neglected to offset the decretal amount. He has made previous commitments and proposals which he has not kept and has consistently defaulted. The judgment debtor even issued a cheque in the presence of the Tribunal which was refused due to insufficient funds.

The interlocutory judgment was entered on 11. 10. 2017 and the basis of the claim was refund of deposits.

We find that the Judgment debtor has not been honest with his dealings and commitment to pay the decretal amount. The judgment creditor is entitled to the fruits of his judgment and the continued delay to offset the decretal amount is a continued injustice in his part especially the judgment debtor having issued a cheque knowing very well that there were no sufficient funds to pay against the amount drawn. In the circumstances, owing to the above conduct, we commit the judgment debtor to civil jail for a period of three (3) months, the judgment creditor to pay subsistence allowance.

Read and delivered in an open court this 13th day of February 2020 at Kisumu.

In the presence of ;-

Claimant : Present, Nicholus Kodeku

Respondent : Fredrick Marembo, Chairman of the Respondent

Court Assistant : I. Buluma

Hon. B. Kimemia - Chairman Signed

Hon. F. Terer - Deputy Chairman Signed

P. Swanya - Member Signed