[2025] KECPT 176 (KLR)

Moranga v Vision Africa Sacco Society Ltd (Tribunal Case 384/E567 of 2023) [2025] KECPT 176 (KLR) (Civ) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 176 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 384/E567 of 2023

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

February 27, 2025

Between

Mathew Magoma Moranga

Claimant

and

Vision Africa Sacco Society Ltd

Respondent

Judgment

1. The Claimant stated that he is a member of the Respondent from 2020.

2. After when he had saved Kshs.135,000/= with the Respondents, he applied for a loan of Kshs.540,000/= for the purchase of a Tuktuk of which after payment to the supplier the Respondent was to deliver the Tuktuk to him.

3. The Tuktuk was delivered to him on 2/2/2023 of which he took possession and started paying.

4. The loan of Kshs. 540,000/= was to be repaid in 4 years at a rate of kshs.17,160/= per month.

5. For the 1st 10 months in the 1st year he paid Kshs.171,600/= of which he topped it up to be Kshs. 205,100/=.For the 2nd year he said he paid Kshs.220,000/=

6. For the 3rd year he stated that he paid kshs.100,000/= before the motor vehicle got an accident. He reported to the Sacco that the Tuktuk was involved in an accident.

7. It was the claimant’s testimony that, the Respondent has insured the Tuktuk but the insurance did not compensate me or pay for the repairing of the damaged Tuktuk.

8. In conclusion, the Claimant stated that in total he had paid Kshs.620,000/= to the Sacco and take issue to why he as charged interest from November 2020 yet he was given the Tuktuk in February 2021.

The Respondent 9. Since the Respondent did not attend the hearing as scheduled, the Tribunal marked the case as undefended.

Analysis And Determination 10. Upon reading and analysing the evidence on record which include the statement of claim, the notice of motion, the supporting affidavit, the Respondent’s Replying affidavit ,the claimant’s member statement account and the mpesa statement together with other annextures and finally the written submissions of the parties .We find that the issues for our determination are:

11. a.Whether the claimant is entitled to the prayers sought and to this judgement?b.Who will bear the cost of this suitc.Whether the claimant is entitled to the prayers sought and to a judgement?

12. Foremost, it is not in doubt that the Claimant is a member of the Respondent and that the Claimant admits that he was granted a loan of Ksh540,000/= by the Respondent’s on 24/12/2020 to purchase a Tuktuk Registration No KTWC 663H which was registered in his name.

13. Paragraph 2 of the Claimant’s Supporting Affidavit dated 21/7/2023 speak to this thus:“That I am the registered owner of the three wheeler KTWC 663H Tuktuk, annexed and market as exhibit mmmi is a copy of the ownership Record and data.”

14. We have examined the copy of the stated ownership record and find that the only entry of ownership is that of the Claimant. We have not seen anywhere where the chattel is mortgaged in favour of the respondent neither has the respondent stated that the three(3) wheeler Tuktuk is charged or mortgaged on this, it is our finding that the claimant is the registered owner of the Tuktuk.

15. On the issue of repossession of the said subject matter the Respondent denied any intention to reposses as stated under paragraph 7 of the Supporting Affidavit of the Claimant. On the other hand, the respondent clarified that it is a rule whithin their credit policy that notices are supposed to be issued as a legal requirement to loan defaulters before any action is taken. To them, the letter 12th July 2023 addressed to the Claimant not a notice to repossess the Tuktuk but it was meant to inform him of his indebtedness to the Respondent.

16. We have perused through the letter in question and did not find any reference to the phrase repossession of the Tuktuk as stated by the claimant. We therefore do not wish to be labour in an issue which was not the intention of the Respondent and that the perceived threat if any has not taken place.

17. Turning to the point of when was the Tuktuk purchased, we are unable to analyse a precise answer to this question because there is very scaty information which has been filed by the parties on record. However,a perusal of the ownership record and data one page record attached with the documents of the Claimant show that the Tuktuk was sold on 21/12/2020 to the Claimant. There is no copy of payment receipt from car and general to show who paid for it neither is there a record of a delivery note.

18. However, in the oral hearing held on 11/11/2024 , which was not attended by the Respondents, the Claimant stated that he requested for a loan from the Respondents on 20/1/2020 for them to purchase a tuktuk. He further orally stated that the Tuktuk was delivered to him on 2/2/2021

19. In the absence of the Respondent to controvert the statement and further failed to submit in their Written submission on the issue. It is our opinion that on a scale of probability the claimant took possession of the Tuktuk on 2/2/2021 which means that the Respondent must have paid earlier than that date.

20. However, in the absence of any evidence from the Respondents, the Tribunal is inclined to agree with the Claimant and order that the claimant should not be charged interest prior to the date of 2/2/2021

21. On a casual look at the claimant’s member statement account, it shows a summary of the interests and penalties that the respondent is entitled to charge the Claimant according to the terms of the loan Application Form. From 01/01/2021, the form shows that apart from the interests charged, the claimant has been re- paying the loan which according to his oral testimony at the hearing, he stated that he had paid a total of Ksh.620,000/= to date.

22. According to the letter of the Respondents dated 12/7/2023 addressed to the Claimant, the Respondents were claiming ksh.237,214/= to be paid as final settlement of the debt within 7 days. On the face of the Claimant’s member Statement of Account, the cut- off date at the last page is on 25/02/2023 which does not indicate outstanding running balances per month. For example, the statement does not provide the amount outstanding as at the end of a given final year.

23. Further, we note that the Claimant has paid through mpesa some amount of money after the last date of the statement of member account. This needs to be taken into account while carrying out reconciliation. Because of the scanty of information in the Tribunal’s record and the failure of the Respondents to state their side of the calculations, we are unable to determine with exactitude whether the claimant has paid the full amount or not. Nevertheless, when the respondent failed to attend to the hearing held on 11. 11. 2024 and further failed to file an updated member statement account plus other evidences, the Tribunal is made to believe that the Kshs. 620,000/= that the Claimant stated that he had paid is true. Whether that is/was the final amount owed is unclear.

24. This unclarity is bolstered by the Claimant who made a statement under paragraph 9 of his Supporting Affidavit dated 21/7/2023 and state:“That it would only be fair and just that it be granted the orders sought pending the hearing of this claim: allow me continue paying the respondent as the subject three wheeler is for commercial purposes.” (Emphasis ours).

25. Our plain reading of this paragraph depicts a situation where the Claimant is asking to be allowed to continue paying the amount outstanding.

26. On 26/7/2023 the Tribunal granted the interim orders and from then, there is no information from the Respondents whether the Claimant continued to pay the outstanding amounts or not.

27. Under the circumstances and considering the lethargy that the Respondents have displaced in attending to this care, we are inclined to belief that the Kshs. 620,000/= that the Claimant confirmed to have paid to be the total amount of money that was required from him for the 4 years duration of the loan. If the Respondents had any claim against the Claimants they would have provided evidence in their pleadings, attended the hearing file Written sub which they failed.

28. The Claimant stated that the Tuktuk three-wheeler motor vehicle got an accident and has been in garage since then. The Tribunal during the hearing wanted clarification as to whether the subject matter was insured and who insured it. The Tribunal was not provided with police abstract regarding a report made to the police on the accident and no evidence on the insurance policy was filed by the Claimant. The mere statement made by the Claimant that the Respondent insured the subject matter cannot be taken into account unless evidence is produced to that effect.

29. On this note, there is no blame to be apportioned to the Respondents after all the three(3) wheeler Tuktuk is not registered in their name or any attachment to the registration inform of a mortgage. Therefore, the liability on repairs and any other loss lies with the Claimant (owner)

30. In conclusion, having considered the evidence and the parties’ pleadings in our record and the Claimant’s oral testimony during hearing and having noted that the Respondents did not file any evidence or attend to the hearing to rebut the Claimants Statements, we hold that that the Respondents seem not to have any Defence.

31. Consequently, we hereby enter judgement in favour of the Claimants against the Respondents as follows:

32. a.Prayer (a) fails: By granting an injunction to restrain the Respondents, its servants and agents from attaching and selling the three (3) wheeler Tuktuk registered in the name of the claimant as KTWC 663Hb.The claimant to continue paying the said loan to the Respondent as agreed.c.The Respondent to pay the costs and interest of the claim at Tribunal rates from date of filing claim.

JUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF FEBRUARY, 2025 IN THE PRESENCE OFHon B. Kimemia chairperson Signed 27. 02. 2025Hon J. Mwatsama Deputy chair Signed 27. 02. 2025Philip Gichuki Member Signed 27. 02. 2025Beatrice Sawe Member Signed 27. 02. 2025Michael Chesikaw Member Signed 27. 02. 2025Fridah Lotuiya Member Signed 27. 02. 2025P. Aol Member Signed 27. 02. 2025Tribunal Clerk JonahBosire advocate for ClaimantNo appearance for RespondentHon B. Kimemia chairperson Signed 27. 02. 2025