[2023] KECPT 1075 (KLR)

Njeru v Nawiri Sacco Society & Restorers Consult Auctioneers (Cause E286 (224) of 2022) [2023] KECPT 1075 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1075 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Cause E286 (224) of 2022

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

November 30, 2023

Between

John Njiru Njeru

Claimant

and

Nawiri Sacco Society & Restorers consult Auctioneers

Respondent

Judgment

1. The claim is brought vide a Statement of Claim dated 19/04/2022 and filed on 21/04/2022. It was accompanied by a Verifying Affidavit sworn on 19/04/2022 and filed on 21/04/2022,together with a List of Documents include; Loan Account Statements, Proclamation Notice Search and Demand Notices. The Claimant also filed a Witness Statement dated 19/04/2022 and filed on 21/04/2022.

2. The Respondent filed a statement of defense on 07/07/2022 dated 10/06/2022. Together with a Witness Statement and a List of Documents dated 10/06/2022. The List of Documents included ;a Loan Application form copies of letters of offer for the two loan facilities ,Loan Account Statemen, Copy of Letters of Consent, Demand Letters and Proclamation and Notification of Sale.

Claimant’s Case 3. Claimant’s witness 1 was the Claimant himself John Njiru Njeru who adopted his Witness Statement dated 03/03/2023 as Evidence- in- Chief. He also produced a List of Documents dated 09/04/2022 as a Claimant exhibit 1.

4. He avers that the Respondent adduced him a loan facility amounting to Kshs.1,500,000/= payable in instalments of Kshs.47,246/= per month for two years .He claim to have been paying diligently. He also avers that he got another loan of Kshs. 800,000/= payable in 24 months.

5. The Claimant alleges to have paid a total of Kshs.2,640,563/= as at 19/02/2020. He avers that as at 12/4/2022 the Statement of Account show payment of Kshs.1,034,989/= with a balance of Kshs.25,400/=.

6. He avers that on 24/02/2022 he receive a Proclamation of Sale for a balance of Kshs.1, 229,894/=.

7. The Demand Notice received indicated he had a loan balance of Kshs.388,500/= on the Kshs.1,500,000/= loan facility while Kshs.836, 100/= on the Kshs.800,000/= loan facility. He avers that he use Nyandori /kirigi /536 as a security for the loan facility .He avers that he has cleared paying the loans and that he alleges to have over paid.

8. He prays for a refund and injunction restraining the Respondent from selling his land.

9. The Clamant called an accountant whose report indicated that on the Kshs.1, 500,000/= loan facility he paid by Kshs.3, 231,799/= while on the Kshs.800,000/= loan facility he paid Kshs.851,579/= this is inclusive of the principle interest and charges.

Respondent Case 10. Respondent’s witness 1 called Joseph Mwaniki who is the Credit Manager of the 1st Respondent. He adopted his sworn statement dated 10/06/2022 as his evidence in chief and produce a list of documents as exhibits. Respondent exhibit 1-8.

11. He avers that indeed the 1st Respondent advanced loan facility to the Claimant, KSHS, 1,500’000/= and KSHS.800, 000/= respectively that were secured by Nyandori /Kirigi/536. he avers that the Claimant paid diligently in the beginning but stopped .He Claimed that he diverted the coffee payouts from the 1st Respondent accounts. Consequently ,they procured services of 2nd Respondent who sent notification of sale and redemption notices dated 23/02/2022 .He alleges that the Claimant owes Kshs.870,000/= on the Kshs.1,500,000/= loan facility and Kshs.540,000/= on the Kshs.800,000/= loan facility.

Analysis And Determination. 12. After perusing through all the pleadings and witness statement the issue for determination is

Whether the Claimant is indebted to the 1st Respondent? 13. It is not in dispute that the 1st Respondent advance the Claimant two loan facility amounting to kshs.2,300,000/=.The challenges comes in on the repayment of the facilities .Each parties gives contradicting conclusions drawn from the same statements of accounts as produced by the parties.

14. A keen and critical look at the statements of accounts show that the business loan account statement, this is for the Kshs.1,500,000/= facility, that the principle balance is Kshs.25,400/=. That of the produced loan account, shows the loan balance is Kshs.674,704/=. Furthermore the Statement of Account shows that the Claimant has been paying off the debt and hence the reduced loan balances .The consistency of payments by the Claimant indicate his commitment to meet all the contractual obligation as provided for in the Loan Agreements. It is therefore not clear why the 1st Respondent will send Demand Notices and even procure the services of the auctioneer.

15. The Claimant is indeed indebted to the Respondent to the extent of Kshs 700,100/= however the willingness and good faith shown by the Claimant in paying of the debt will not warrant the intervention of the auctioneer.

16. The Tribunal therefore find in favor of the Claimant against the Respondent and orders as follows;

17. i)The 2nd Respondent is barred from disposing off the property for the time being.ii)The 1st Respondent should allow the Claimant to continue with the repayments of the loan facilities.iii)The 1st and the 2nd Respondent to bear the cost of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIACHAIRPERSONSIGNED 30. 11. 2023. .................HON. J. MWATSAMADEPUTY CHAIRPERSONSIGNED 30. 11. 2023. .................HON. BEATRICE SAWEMEMBERSIGNED 30. 11. 2023. .................HON. FRIDAH LOTUIYAMEMBERSIGNED 30. 11. 2023. .................HON. PHILIP GICHUKIMEMBERSIGNED 30. 11. 2023. .................HON. PAUL AOLMEMBERSIGNED 30. 11. 2023. .................HON. MICHAEL CHESIKAWMEMBERSIGNED 30. 11. 2023. .................TRIBUNAL CLERKJONAHMs. Waichiya advocate holding brief for Ms. Ngigi advocate for the Claimant.Ms. Mulinja advocate holding brief for Njeru Ithiga advocate for the RespondentHON. J. MWATSAMADEPUTY CHAIRPERSONSIGNED 30. 11. 2023