[2024] KECPT 1718 (KLR)

Muhasibu Sacco Society Limited v Omondi (Tribunal Case 771 of 2019) [2024] KECPT 1718 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KECPT 1718 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 771 of 2019

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

October 3, 2024

Between

Muhasibu Sacco Society Limited

Claimant

and

Peter Oluoch Omondi

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 16th December 2019. In the Statement of Claim, the Claimant claims that the Respondent was its member, member number MHS12483. The Claimant contends that the Respondent was given a loan that he failed to repay, leading to his guarantors being attached, and also an outstanding amount that the Respondent is yet to repay. The Claimants are aggrieved and prays for :a.Judgment against the Respondent for the sum of Kshs. 2,531,399. 64/= being owed as at 31st October, 2019. b.Interest thereon at Tribunal rates as until payment thereof.c.Costs of the cause.d.Any other and further relief as this Honourable Tribunal may deem fit to grant.The Claimant filed a Witness Statement and a List of Documents in support of its claim.

2. The filed a Response to the Claim dated 21st February 2020. In their response, the Respondent that he has not repaid any amount towards the loan. He also avers that he is currently repaying his guarantors and thus not in a position to repay the Claimant.

3. During the hearing the Claimant’s loan recovery manager testified and as well as the Respondent.

4. In his testimony, the Claimant’s witness testified that they recovered a total of Kshs. 1,917,409/- from the guarantors of the Respondent, and that the outstanding loan as at the day of the hearing was Kshs. 915,000/- with interests. That the loan interest was stopped in December 2022 as per the decision of the board.

5. The Respondent adopted the contents of his witness statement and added that he was not informed before the guarantors were attached.

6. The court ordered the parties to file their submissions, and both parties filed their submissions.

7. According to the Claimants, a lender is entitled to recover not only the principal but also any agreed interests. The Claimants contend that they recovered the principal amount from the guarantors, but did not recover any interests from the guarantors, and the amount continued to accumulate until 2022 when they reviewed their policies. They submit that the Respondent owes the Claimant Kshs. 915,000/-.

8. According to the Respondent, the Claimant had failed to show how the amount claimed was arrived at. The Respondent also submits that there was no basis of reinstating the loan in 2016 and that according to them the loan had been repaid in full.

Analysis 9. The question before this Tribunal is whether the Claimant is entitled to the reliefs sought. It is not in dispute that the Claimant was a member of the Respondent. It is also not in dispute that the Claimant applied for and was awarded a loan by the Respondent. It is also not in dispute that the Claimant defaulted the loan and the same (or part of it) was recovered from his guarantors. What is in dispute is whether the Respondent is still indebted to the Claimant.

10. In the statement of Claim, the Claimant averred that the Respondent is indebted to the tune of Kshs. 2,531,399. 64 as at 24th July 2019. During the hearing, the Claimant testified that the Respondent owes Kshs. 915,000/- to the Claimant. Finally, in their submissions, the Claimant submitted that the Respondent is indebted to the tune of Kshs. 950,000/-. It is trite law that whoever alleges has the burden of proving. During the hearing and in their submissions, the Claimant testified that the balance due was interest on the principal sum which continues to grow. However, we note that this amount is lower than what was claimed in the Statement of Claim. This Claim was filed after the guarantors were deducted, and therefore it cannot be said that the difference is what the guarantors were deducted.

11. The Claimants is a Cooperative society and it is the custodian of all the records including the loan accounts belonging to the Respondent. However, the Claimant has failed to give an account statement of how the amount they claim dropped from over two million shillings, to just under one million in their submissions. The Statement of Claim was also not amended to reflect the final averments. If indeed the Respondent is still indebted to the Claimant, this court cannot draw lots to decide which of the Claimant’s claim is the right one. It is upon the Claimant to show this court how the Respondent’s debt (if any) comes up, and how the same is computed to the sum claimed.

12. The Upshot is that we find that Claimant has not proved his Claim and the same is hereby dismissed with costs to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaiMs. Ireri Advocate holding brief for Mr. Mureithi Advocate for the Claimant.Peter Oluoch Omondi – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024