[2021] KECPT 280 (KLR)
The Tribunal found that the Respondent failed to provide justifiable reasons for payment of the decretal sum by installments, noting that the Claimant had withdrawn from the Sacco in 2018 and had not been paid for almost three years. The Tribunal emphasized that it is not the court's business to determine how a...
Source-derived case information.
- Citation
- [2021] KECPT 280 (KLR)
- Parties
- Claimant: Michael Mubea Ndurumo; Respondent: National Hospital Insurance Fund Sacco Society Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 276 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Installment Payment and Interest Variation
- Outcome
- Application dismissed in part; interest rate varied; costs awarded to Claimant.
- Legal Topics
- Installment Payment of Decretal Sum, Interest Rate on Judgment Debt, Court Discretion, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mubea Ndurumo
Claimant
National Hospital Insurance Fund Sacco Society Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Installment Payment and Interest Variation
Legal Issues
- 1 Whether the court can grant orders for installment payment of the decretal sum.
- 2 What interest rate should be applied to the decretal sum.
Ratio Decidendi
The Tribunal found that the Respondent failed to provide justifiable reasons for payment of the decretal sum by installments, noting that the Claimant had withdrawn from the Sacco in 2018 and had not been paid for almost three years. The Tribunal emphasized that it is not the court's business to determine how a judgment debt is paid where there are clear procedures for execution. On the issue of interest, the Tribunal held that the applicable rate is the court rate of 12% per annum from the date of the ruling, rather than the 14% pleaded by the Claimant. The Tribunal dismissed the application for installment payments and for restraining execution, but allowed the adjustment of the...
Court Disposition
Application dismissed in part; interest rate varied; costs awarded to Claimant.
Orders
- Prayer for certification as urgent is spent.
- Prayer for installment payment of decretal sum is dismissed.
Full Case Text
Judgment text and source record
69 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO.276 OF 2020
MICHAEL MUBEA NDURUMO...........................................................CLAIMANT
VERSUS
NATIONAL HOSPITAL INSURANCE FUND
SACCO SOCIETY LIMITED............................................................RESPONDENT
RULING
1. The Application for determination is one dated 8. 4.2021 and filed on even date.
The Applications seeks for Orders:
a. This Application be certified as urgent and heard ex parte in the first instance.
b. This Honourable court be pleased to grant leave to the Respondent to liquidate the outstanding decretal sum of kshs.584, 250/- by paying a sum of Kshs.50,000/= per month until payment in full.
c. The interest rate be renewed from 14% to 12%.
d. The Claimant be restrained from levying execution as long as the Respondent pays the proposed monthly installments.
2. The same is premised on the grounds on the face of the Application and supported by the Affidavit of Sophie Otiu the Respondent’s Manager to wit she averred that.
Judgment was entered in favour of Claimant as against the Respondent on 3. 3.2021.
That Notice of Entry of Judgment is for a sum of Kshs.384,250/= with 14% interest per annum.
That the interest rate of the Respondent is governed and regulated by statute capped at 1% per annum that is, 12% per annum.
The Respondent By-laws provide that Share Capital of Kshs.20,000/= cannot be refunded but transferred to another member of the Sacco.
That there are 50 files before the Co-operative Tribunal against Respondent seeking refund of shares and Respondent is unable to keep up with the demands of members withdrawing from the Sacco.
He further averred Respondent is willing to liquidate the amount by installment of Kshs.50,000/= payment in full.
3. The Claimant’s filed Grounds of Opposition dated 20. 4.2021 in opposition of Application dated 8. 4.2021and stated one, the Application is an abuse of the court process.
That the Supporting Affidavit of Sophie Otiu does not make a case to warrant ordering sought.
The Respondent continues to offer credit to its members and thus cannot claim to be unable to pay the decretal sum.
4. The Claimant further filed a Replying Affidavit dated 20. 4.2021 filed on 10. 5.2021 and stated.
That the Application was meant to delay justice.
That he had withdrawn from the Sacco since 25. 7.2018 and since then the Respondent has not paid him his cash.
That the 14% interest is what he pleaded and is what is the interest chargeable at the Tribunal.
5. Parties were ordered to file written submissions to dispose off the Application as per directions given on 8. 4.2021.
The Claimants filed their submissions dated 15. 6.2021filed on 18. 6.2021.
6. Having analyzed the set of written submissions, Affidavits from all parties the issues are:
Issue One:
Whether the court can grant orders for installment payment of decretal sum.
Issue Two:
The interest rate to be used.
ISSUE ONE:
Whether the court can grant orders for installment payment of decretal sum.
The Applicant requests court for orders to pay the decretal sum in installments of Kshs.50,000/=.
The Applicant relies on Section 1A, 1B, and 3A of the Civil Procedure Act Cap 21.
The Claimant states the same is an abuse of the court process.
7. The Application calls for the Court’s discretion in its determination. There are some known principles to guide the court when exercising discretion.
One: This is an equitable remedy available at a deserving party.
Two: The same is made on a case to case basis.
Three: Reasons for application in this instance installment need to be reasonable to the satisfaction of the court.
Four: prejudice suffered by the other party if leave is granted to pay via installment.
The court entered judgment as against the Respondent.
It should not be the court’s business how the same is paid. There are clearly laid out procedures to which Claimant can follow to ensure payment of his decretal sum.
No justifiable reasons have been set out by the Applicant’s why the decretal sum should be made via installment.
The Claimant rightly withdrew from the Respondent membership in 2018 and if at all the Respondent were keen on payment they would have done it then.
It is almost 3 years since and Claimant has to enjoy the fruits of his Labour.
8. Issue Two:
It is law that the court rates are held at 12% per annum.
The Claimant seeks to have the interest rate of 14%renewed to 12%.
They claim their rates are at 1% per month culminating to 12% per annum.
To this end we shall use the court rates which stands at 12% per annum.
9. Without much further ado the Ruling of this Honourable Tribunal is that:
1. Prayer one –Spent
2. Prayer Two – Fails
3. Prayer Three - in the following terms, judgment confirmed at Kshs.584,250/= , any further interest chargeable from the date of Ruling will be at 12% per annum.
4. Prayer Four – Fails.
5. Costs of the Application assessed at Kshs.10,000/= to be paid to the Claimant by the Respondent.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.
Hon. B. Kimemia Chairperson Signed 29. 7.2021
Hon. J. Mwatsama Deputy Chairperson Signed 29. 7.2021
Mr. Gitonga Kamiti Member Signed 29. 7.2021
Tribunal Clerk Charles Maina
Omangi Gichane for Respondent
Wanja Mungai holding brief for Kimondo for Claimant.
Hon. B. Kimemia Chairperson Signed 29. 7.2021