[2023] KECPT 746 (KLR)

Njagi v Yetu Sacco Society (Tribunal Case E080 of 2022) [2023] KECPT 746 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 746 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E080 of 2022

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

August 31, 2023

Between

Moses Muthomi Njagi

Claimant

and

Yetu Sacco Society

Respondent

Ruling

1. This ruling dispenses with the Claimant’s Notice of Motion Applications one dated 7th August 2023 supported by an affidavit sworn by the Claimant, Moses Mithomi Njagi, and brought under Section 76 of the Cooperative Societies Act, Rules 3,6 and 11 of the Cooperative Tribunal (Practice and Procedure Rules 2009) Order 51 of the Civil Procedure Rules and all other enabling provisions of the law. The Application seeks the following orders:a.That the application be certified as urgent, be heard ex-parte in the first instance and service be dispensed with in the first instance.b.That pending the hearing and determination of this application, this Honourable Tribunal be pleased to order the Respondent either by itself, its servants or agents to unconditionally release motor vehicles registration numbers KCU 011D and KCU 011J to the Claimant.c.That the costs of this application be provided for.

2. The Application is premised on the grounds on its face which are inter alia that: The Applicant’s motor vehicles registration numbers KCU 011D and KCU 011J were repossessed by the Respondent without any notice. The Applicant contends that the claim is for an injunction to stop the Respondent from possessing the motor vehicles and failure of this Tribunal to grant the orders sought in this application will render the main claim a nullity.

3. The Respondent filed a replying affidavit sworn by their head of recovery, one Diana Kawira. In their Replying Affidavit, Respondents contend that the subject matter of the original claim is an alleged fraud by the vendor of motor vehicle and that the instant Application has nothing to do with that. They depone that the subject motor vehicles were purchased through a loan, and the claimant has defaulted in servicing the two loans, and hence the repossession.

Analysis 4. The question that this tribunal is dealing with is whether the Respondent can be ordered to unconditionally release the motor vehicles Registration number KCU 011D and KCU 011J to the Claimant.

5. It is not disputed that the Applicant is a member of the Respondent. It is also not disputed that the Applicant has taken loans with the Respondent in respect of the subject motor vehicles. It is also not disputed that the subject motor vehicles have been repossessed by the Respondent. What is in issue is the reason the motor vehicles were repossessed. According to the Respondent, the vehicles were repossessed because of not duly servicing the loans, while the Claimant claims that he has duly serviced the same.

6. We have considered the Supporting Affidavit and the Replying Affidavit filed by the parties. We note that the subject matter of the Statement of Claim and the subject matter of this Application are the same, to wit, motor vehicles registration numbers KCU 011D and KCU 011J, and thus the claim by the Respondent that this application cannot be dealt with herein fails.

7. It is the Respondent’s position that the subject motor vehicles were repossessed as a result of default by the Claimant. Indeed the Respondent has attached loan statements in respect to the subject motor vehicles. The Respondent has not indicated how much loan is in default, save for inferences that can be made from the Respondent’s letters to the auctioneers. On the face of the documents, the only penalty due seems to be the repossession charges that arose out of the repossession of the motor vehicles.

8. In tackling this Application, we seek counsel of Justice Mativo in Hellen Wangari Wangechi v Carumera Muthini Gathua [2005] eKLR, when he stated as follows:“Whether one likes it or not, the legal burden of proof is consciously, or unconsciously the………..test applied when coming to a decision in any particular case. The fact was succinctly put forth by Rajah JA in Britestone PTE Ltd v Smith & Associates Far East Ltd [2007] 4SLR (R) 855 at 59: ‘The court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him.”

9. We find that Claimant in his Application, claims that the motor vehicles were repossessed illegally since there was no notice, and also because he was not in default. At this point the onus was on the Respondents to show that indeed the Claimant was in default, how long he was in default, and how much was in default, and also show the default notice that was served upon the Claimant before the motor vehicles were repossessed. We feel that the repossession of the motor vehicles was an afterthought and a reaction to the Claimant’s claim that prays this court to prevent the Respondent from repossessing the motor vehicles for a loan that was fraudulently diverted. We are not convinced that the repossession was done in good faith, or as a result of default in the loans in respect of the subject motor vehicles.

10. Flowing from above, we find that:1. The Notice of Motion Application dated 7th August 2023 is merited.2. The Respondents are hereby ordered to unconditionally release motor vehicles registration numbers KCU 011D and KCU 011J to the Claimant with immediate effect.3. The Respondents to bear the costs of this Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahMuinduko advocate for the Claimant/Applicant.No appearance by RespondentMention for Pre-trial directions on 11. 12. 2023. notice to issue.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023