[2025] KECPT 334 (KLR)

Munoru v Mwenge Savings and Credit Societies Ltd (Tribunal Case 66/E086 of 2023) [2025] KECPT 334 (KLR) (12 June 2025) (Ruling)

Neutral citation: [2025] KECPT 334 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 66/E086 of 2023

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

June 12, 2025

Between

Andrew Kainga Munoru

Claimant

and

Mwenge Savings and Credit Societies Ltd

Respondent

Ruling

1. The Notice of Motion dated 16th August, 2024 was filed by the Respondent/Application seeking the following orders:a.Spent.b.That this Honorable Court be please to order Stay of Execution of the Judgement/Decree of the Judgement date and delivered on 31st July 2023 and all subsequent orders thereto pending inter-partes hearing and determination of this applicationc.That this Honorable Court be please to set aside the Judgement/Decree of 31st July, 2022 and all the subsequent orders thereto pending the determination of the Application.d.That the costs of this application be provided for.

2. The application is based on the grounds on the fact thereof and is supported by the Affidavit of the Respondent/Applicant sworn on 16th August, 2024. The grounds on the face of the application are inter alia that the Respondent/Applicant is approved by the Judgement entered in favor of the Claimant/Respondent on 31st July, 2023 as he did not get a chance to defend himself as he was not made aware of the suit and was only served with a Decree; that the Respondent/Applicant has committed his finances to servicing loans and is in serious financial difficulties; that the Respondent/Applicant has an arguable case with high chances of success;

3. In his Supporting Affidavit, the Respondent/Applicant adds the Respondent is moving with speed to implement the Judgement and if the orders sought are not granted, he stands to suffer great loss and damage; that he entered into a Loan Agreement in 2019 whereby he took a loan of Kshs. 900,000 out of which Kshs. 300,000 was to be retained to the Sacco as shares hence the Loan, to be repaid was Kshs. 600,000; that though his business collapsed due to Covid, he made payments when he could and had paid Kshs. 130,000 by Covid shut down; which eventually shut down the business before completion of payment of money invested in his businesses that servicing a bank loan of Kshs. 2,500,000 has taken a toll on his financing that he has a meritorious case against the Claimant.

4. The Claimant/Respondent opposed the Respondent/Applicants application dated 16th August, 2024, vide a Replying Affidavit sworn by Moses Murianki on 9th October, 2024. In the affidavit, the deponent states that the application has no merit and is meant to cause injustice and deny the Respondent the fruits of the regularly obtained Judgement; that the Applicant was served with the Summons and he rejected to and/or refused to enter appearance and file a Defence; that the Respondent/Applicant slept on his right for 14 Months only to wake up and apply for setting aside of the Judgement/Decree; that there is no reasonable explanation why he has not offset the loan despite procuring the loan over 4 years ago; that the Applicant has not even annexed a draft Defense to demonstrate to ascertain whether it raises viable issues; that the Applicant has not issued an explanation for the inordinate delay; that the Respondent/Applicant is a healthy man with properties in Maua Town and capacity to pay the loan amount; that the Application does not satisfy the Tribunal required to grant the prayers sought.

5. In response to the Replying Affidavit, the Respondent/Applicant filed a Supplementary Affidavit sworn on 8th November, 2024, wherein he denies having been served with the Court Proceedings; that he should not be condemned unheard; that he has borrowed several other loans over the period of 6 years to make ends meet and seeks indulgence to be able to pay under a flexible module.The Application was conversed by way of Written Submissions.The Applicant’s filed Written Submissions dated 22nd January, 2025 while the Respondent filed Written Submissions dated 19th February, 2025.

Analysis and Determination: 6. We have considered all the documents filed herein by the parties herein includes the Written Submissions and cited authorities in support of the parties’ respective arguments.The only issue for our determination ids whether or not the Applicant is entitled to the prayers sought.It is not in dispute that the applicant is indebted to the Respondent and has indicated willingness to settle the debt in a structured mode. However, the has failed to make a specific proposal for payment to show the seriousness of his proposal.

7. It is evident that whereas the Applicant argues that he was not served with Summons to Enter Appearance in order for him to enter appearance and file Defence, he fails to explain the delay in filing the Application to set aside Judgement after he received the Decree.

8. It is surprising to this Tribunal that while admitting his indebtedness to the Claimant/Respondent herein the Respondent/Applicant has to advanced evidence that indeed he borrowed loans from Bank and/or other institutions which he has been paying and in fact stated that he has, clearing the material period between 2019 and 2024, paid off some of these loans including one amounting to Kshs. 3,075,888 which he has fully paid off. This is a clear indication looking at paragraphs 7 to 9 of the Applicant’s Supplementary Affidavit, that the Applicant has not taken his indebtedness to the Respondent’ seriously enough to make the necessary effort to pay it off, as he did towards paying the other loans borrowed at the same time after the Sacco loan herein.

9. It is our finding therefore that the Applicant has not convinced this Tribunal to exercise its directions in his favor.

10. This Tribunal finds that the Respondents Notice of Motion dated 16th August ,2024 lacks merit and the same is hereby dismissed with costs to the Claimant against Respondents.Judgment of Tribunal of 31/7/2023 stands.

rULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 12. 6.2025HON. BEATRICE SAWE MEMBER SIGNED 12. 6.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 12. 6.2025HON. PAUL AOL MEMBER SIGNED 12. 6.2025HON. PHILIP GICHUKI MEMBER SIGNED 12. 6.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 12. 6.2025Tribunal Clerk J. MutaiAsuma Advocate holding brief for Mutembei advocate for the Claimant.Mutuma Kithinji advocate for the Respondent -None appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 12. 6.2025