[2023] KECPT 1051 (KLR)
The Tribunal found that the Respondent's Amended Statement of Response did not raise any triable issue and was therefore struck out. The Respondent admitted to taking the loan and defaulting on repayment, and his defence merely sought to have the Tribunal rewrite the contract by imposing a flexible payment plan,...
Source-derived case information.
- Citation
- [2023] KECPT 1051 (KLR)
- Parties
- Applicant: Ndetika Rural Cooperative Society; Respondent: Benmack Ochieng Ragot
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 916 (E987) of 2022
- Procedural Posture
- Tribunal Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
- Outcome
- summary judgment for claimant; respondent's defence struck out
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Loan Default, Summary Judgment, Striking Out Pleadings, Contract Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndetika Rural Cooperative Society
Applicant
Benmack Ochieng Ragot
Respondent
Procedural Posture
Tribunal Application / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
Legal Issues
- 1 Whether the Respondent's Amended Statement of Response raises any triable issue to warrant a full hearing.
- 2 Whether the Claimant is entitled to summary judgment for the outstanding loan amount.
- 3 Whether the Tribunal should interfere with the contractual terms to impose a flexible payment plan.
Ratio Decidendi
The Tribunal found that the Respondent's Amended Statement of Response did not raise any triable issue and was therefore struck out. The Respondent admitted to taking the loan and defaulting on repayment, and his defence merely sought to have the Tribunal rewrite the contract by imposing a flexible payment plan, which is not within the Tribunal's mandate. The Tribunal emphasized that courts should not interfere with the contractual terms freely agreed upon by parties. As a result, summary judgment was entered in favor of the Claimant for the outstanding loan amount, with interest and costs.
Court Disposition
summary judgment for claimant; respondent's defence struck out
Orders
- The Respondent’s Amended Statement of Response dated 26th April, 2023 and filed on 3rd May 2023 is struck out.
- Summary judgment for the sum of Kshs 4,309,267.02 with interest at court rates enters in favor of the Claimant from 21st November, 2022.
Full Case Text
Judgment text and source record
32 paragraphs
Ndetika Rural Cooperative Society v Ragot (Tribunal Case 916 (E987) of 2022) [2023] KECPT 1051 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KECPT 1051 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 916 (E987) of 2022
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
November 30, 2023
Between
Ndetika Rural Cooperative Society
Claimant
and
Benmack Ochieng Ragot
Respondent
Ruling
Statement Of Facts 1. Matter for determination is Notice of Motion dated 12. 5.2023. The Respondent is a member of the Claimant Sacco and on 24th August, 2020, applied for an Asset Finance Loan of Kshs. 3,600,000/= which was used to buy a motor vehicle Registration number FAW KCA 613A trailer ZE 9814 for commercial use.
2. As per the Loan Application for presented as evidence before court, the loan was to be repaid for a period of 24 months with interest charged on it at 1. 5% per month on reducing balance. The loan was recurred by the Claimant’s deposits, which were Kshs. 901,600/= at the time of taking the loan and the log book of the motor vehicle KCA 651 A.
3. The Respondent claims that he regularly serviced the loan until sometime in 2021 when the motor vehicle broke down and affected his business making it difficult for him to continue servicing the loan.
4. On 21st November, 2022, the Claimant moved to court upon the Respondent failing, or refusing to pay the outstanding loan amount which stood at Kshs. 4,309,209. 02/= as at that time.
5. Upon being served with Memorandum to enter appearance, the Respondent filed his response which was further amended and filed on 3rd May, 2023. In the Respondent’s Amended Statement of Response, the Respondent admits or state the following among others: That he received a loan facility of Kshs 3,600,000/=
The loan facility was to be used to purchase a motor vehicle that was to be used for commercial purposes.
That he serviced the loan until the motor vehicle broke down necessity financial challenges making it difficult for him to continue paying for the facility.
That he is willing to pay the Claimant the pending balance but wants the Tribunal to order the Claimant to furnish him with a flexible payment plan to enable him complete the repayment of the balance of the Asset Finance facility.
That the Tribunal should declare that his securities, his share capital and the motor vehicles are sufficient to indemnify the Claimant of the Asset Finance loan extend to him.
That the Tribunal should declare that the period of time within which he is required to complete repayment of the balance of the loan facility is not due.
6. On 19th October, 2023, the Claimant under the Order 36 Rule (1) Order 2 Rule 14(b) of theCivil procedure Rules and sections 1A, 1B and 3 (a) of the Civil procedure Act made an Application seeking among others orders that: The Respondent’s Statement of Response struck out as it offends both procedural and substantive law and is an abuse of the court process.
This Tribunal be pleased to enter Summary Judgement in favor of the Claimant as the Respondent admits to having taken a loan and further admits to being indebted to the Claimant in default of repaying his loan.
Determination. 7. It is important to note that the power of courts to strike out pleadings is discretionary and only resorted to as a last resort. Courts have always exercised that power judicially and have always insisted that no pleadings ought to he summarily dismissed unless they appear so hopeless, that they don’t raise any obvious and reasonable cause of action and so weak as to be beyond redemption.
8. In this particular case, the Respondent does not raise any triable issue that needs to be determined by this Tribunal and as such strike out his Statement of Defence.
9. In fact, what he is inviting the Tribunal to look at, is not the work of this Tribunal or any judicial body. It is settled law that its not the work of courts to rewrite contracts between parties, and as such, this Tribunal refuse to interfere in the contract the Claimant entered into willingly with the Respondent by making declarations as to what constitute a flexible payment plan.
10. As such, we enter Summary Judgement in favor of the Claimant as he has proved his case and/or supplied evidence which has not been challenged. The Claimant has also admitted to being in default of paying the loan.
Final Orders. 11. The Application dated 12. 5. 2023 is allowed.i.The Respondent’s Amended Statement of Response dated 26th April, 2023 and filed on 3rd May 2023 is struck out.ii.Summary judgment for the sum of Kshs 4,309,267. 02 with interest at court rates enters in favor of the Claimant from 21stNovember, 2022. iii.Costs of the suit.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahAriga advocate for Claimant/Applicant.Benmack Ochieng Ragot- No appearance.