[2023] KECPT 906 (KLR)

Luganda v Ken Kazi Society (Tribunal Case E002 of 2021) [2023] KECPT 906 (KLR) (21 September 2023) (Judgment)

Neutral citation: [2023] KECPT 906 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E002 of 2021

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

September 21, 2023

Between

Musa Luganda

Claimant

and

Ken Kazi Society

Respondent

Judgment

1. Before this Tribunal is the Claimant’s claim /plaint dated 12th August 2021 seeking for judgment against the Respondents for:a.A sum of Kshs. 157,255. 60/=b.Interest on the Principal sum from November 2019 upto the date of judgment.c.Costs and interest of the suit at court rates.The claim is supported by the Verifying Affidavit of the Claimant dated 14th December 2021, Claimant’s List of documents and witnesses both dated 12th August 2021. In addition, the application is also supported by the resignation letter by the Claimant addressed to the respondent dated 6th August 2019 and a demand letter dated 13th August 2020.

Facts 2. On 15th December, 2021, copies of summons to enter appearance dated 14th December, 2021 together with the Plaint/Claimant’s statement dated 12. 8.2021 Verifying Affidavit dated 14. 12. 2021 and the Claimant’s list of documents dated 12th August 2021 were served on the Respondents.In Response the Respondents filed a Memorandum of Appearance dated 12th January 2022. In response to the claim, the Respondent filed a Statement of Admission on 4th April 2023 where in paragraph 5 and 6 the Respondent stated as follows:“5. In response to paragraph 7 and 8 in the statement of claim, the Respondent wish to state that the sum of Kshs. 120,000/= is due and owing.”

3. On 5th June 2023 the Tribunal considered the Claimant’s request for judgment dated 11th May 2023 filed on 11th May 2023 and ordered that:“in the absence of Response by the Respondents despite service of the claimant’s application, judgment on admission is entered in favour of the claimant against the Respondents for Kshs. 120,000/= plus cost and interest.”On the same breath the Tribunal further ordered the parties to file written submissions on the balance of Kshs. 37,255. 60/= and granted each party 7 days to file and respond accordingly.

Analysis 4. We have considered the chronology of events in this matter and are of the view that this matter is simple and straight forward, in this regard, the Tribunal finds that the issues for determination are two (2) namely:i.Whether the Respondents is as per order 13 rule 2 under the Civil Procedure Act Cap 21 of the Laws of Kenya suppose to pay the claimants Kshs. 120,000/= in one installment or not.ii.Whether the disputed sum of Kshs. 37,255. 60 can go through the trial process?

ISSUE 1 Whether the Respondents is as per order 13 rule 2 under the Civil Procedure Act Cap 21 of the Laws of Kenya suppose to pay the claimants Kshs. 120,000/= in one installment or not. 5. To start off, on issue No. 1, the Tribunal is guided by the provisions of Order 13 Rule 2 which state as follows:“Any party may at any stage of a suit where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admission he may be entitled to without waiting for the determination of any other question between the parties and the court may upon such application make such order or give such judgment as the court may think just.”The Claimant’s claim is that of a liquidated sum of Kshs. 157,255. 60/= together with interest and cost.In response, the Respondent admit in writing unequivocally that they owe the Claimant Kshs. 120,000/= which made the Tribunal to make orders on 5th June 2023 that the Respondent should pay the Claimant the admitted sum.It is the view of the Tribunal that since there is nothing to make the claim vague to require formal proof and the fact there has never been any Defence to it, we find that there is no need for any further judicial process to validate the payment of Kshs. 120,000/=.Consequently, we enter judgment on admission as per the Respondents Statement of Admission filed on 4th April 2022.

6. On the same breath, regarding whether the payment of the Kshs. 120,000/= should be made in lump sum or on installment. Let it be clear to every party that the main concern of this Tribunal is to render justice to the parties who approach us. We have read the statement of the respondents and pinpointed the averment at paragraph F of the written submissions which state:“The Respondents has numerous cases in the Tribunal and due to financial constraints, it cannot afford payments of Kshs. 120,000/= but monthly instalment of Kshs. 15,000/=. That if the Respondent is condemned to pay the entire decretal at once will result in default of other previously recorded consent.”The above excuse does not strike any reasonable mind as a good Defence but can be a subject of different interpretations, one of which can be said to delay the enjoyment of the fruits of a judgment. It is therefore a spurious and flowed argument which we dismiss and order that the admitted sum of Kshs. 120,000/= be paid at once.

Issue 2 Whether the disputed sum of Kshs. 37,255. 60/= can go through the trial process? 7. The Respondents in their written submissions at paragraph 3 note D on legal analysis and submission stated thus:“it is the evidence of the Respondent that the Claimant’s entitlement shares contributions to refund is Kshs. 120,000/= as per the Statement of Account of the Claimant and that the Claimant has not adduced any evidence to controvert it. That the alleged statement filed on 14th December 2021 was a product of fraud by former manager and the claimant.”Certainly, this shows that the amount of Kshs. 37,255. 60/= is disputed by the Respondent.

8. Upon perusal of the Respondent’s submissions, we find that apart from admission of the sum of Kshs. 120,000/= the Respondent make an averment without proof that the Account Statement of the Claimant was a product of fraud by the former manager and the Claimant.The Respondent missed to proof this statement as provided under Section 107 (1) of the Evidence Act Cap 80 where the law state:“That the legal burden of proof lies upon the party who invokes the dint of the law and substantially asserts the affirmative of the issue”Despite quoting the case of Anne Wambui Nderitu versus Joseph Kiprono Ropkoi & Another [2005] 1EA 334 the Respondents missed to understanding that the court was elaborating on the issue of who has the burden to proof an allegation. Because they (Respondents) made allegations that the account statement was a product of fraud, they (Respondents) needed to proof how the fraud was orchestrated and by who?

9. We further note that the Respondents did not file any documents to disprove the sum of Kshs. 37,255. 60/= or to demonstrate that the Claimant does not deserve to be refunded the amount indicated in the Claimant’s Statement of Account.On this note we hold judgment in favour of the Claimant on a balance of probability.On costs and interest, Section 27 (1) of the Civil Procedure Act Cap 80 provides in part that “ provided that costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” Accordingly, in our instant suit the, cost will be in favour of the Claimant.Regarding payment of interest, it is the tradition of this tribunal to invoke its section 19 of the (Procedure and Practice Rules 2009) which clearly provide for the payment of interest on the sum claimed from the date of filing the suit.

Upshot 10. The upshot of this analysis is that the Claimant’s/Plaint dated 12th August 2021 is allowed. Judgment is entered by admission for:a.On admission, the amount of Kshs. 120,000/= to be paid as a lumpsum to the Claimant.b.That on balance of probability the sum of Kshs. 37,255. 60/=- to be paid to the Claimant.c.That the cost of this Application and interest for the sum shall be for the Claimant.

Orders accordingly.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JONAHHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023