[2024] KECPT 1408 (KLR)

Njoroge v Portland Sacco Society Limited (Tribunal Case 234. E251 of 2022) [2024] KECPT 1408 (KLR) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1408 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 234. E251 of 2022

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

August 29, 2024

Between

Nancy Nyambura Njoroge

Applicant

and

Portland Sacco Society Limited

Respondent

Ruling

1. This ruling dispenses with the Notice of Motion Application dated 23rd October 2023, supported by an affidavit sworn by one SILAS KABISA, the chairperson of the Respondent. It is brought under Order 21 Rule 12 (2) of the Civil Procedure Rules 2010 and all other enabling laws. The Application seeks for orders:1. That this Honourable Tribunal be pleased to certify this Application as urgent and service thereof be dispensed with in the first instance.2. That this Honourable Tribunal be pleased to lift the Warrants of Arrest issued against the Chairperson of the Respondent/Applicant Mr. Silas Kabisa on the 17th day of October 2023. 3.That the Respondents do not challenge the sum awarded to the Claimant and in the interim, orders do issue to allow the Respondent/Applicant pay the sum in monthly installments as proposed herein until payment in full.

2. The Application is premised on the grounds on its face which are inter alia that; on 29th September 2022, this Tribunal entered an interlocutory judgement in favour of the Claimant. The Claimant obtained a decree and instituted garnishee proceedings which according to the Applicant proved beyond doubt that they have no financial capability. The Claimant then obtained warrants of arrest against the chairperson of the Respondent. However, according to the Applicant they are in a financial crunch and not fully operational and propose to pay an instalment of Kshs. 50,000/- per month.

3. The Claimant/Respondent filed a Replying Affidavit dated 16th January 2024. In their response, the Claimant/Respondents aver that the decretal sum continues to earn interests, and despite the Applicant making a proposal to settle the decretal sum in instalments of Kshs. 50,000/=, they have only made one instalment in January of 2024. The Respondent is only agreeable to instalments if the decretal sum can be settled in 3 months. She urges this court to dismiss the application.

4. No submissions were filed in this matter.

Analysis 5. The question before this tribunal is whether the Applicant is entitled to the reliefs sought, to wit, setting aside the warrant of arrest and allowing them to pay in instalments of Kshs. 50,000/=.

6. In the case of Tarpo Industries Ltd vs Picasso Products Limited the Court held that:-“the Judgment debtor’s bond fides (good faith) is the most important consideration when the Court considers whether some indulgence can be fairly given to the judgment debtor without unreasonably prejudicing the decree-holder.”Further in the case of Lavington Security Limited vs Nairobi City Water & Sewerage Co. Ltd (2014) eKLR, the Court defined what amounts to “sufficient cause” to include: the debtor is unable to pay lump sum, the debtor can pay by reasonable monthly installments and the application is made in utmost good faith.

7. The Applicant prays this court to lift warrant of arrests and allow payment in instalments. The decretal sum was Kshs. 514,325/- but has since earned interests according to the Respondent. The Respondent contends that the Applicant has paid only Kshs. 70,000/-. This court ordered the Respondent to pay Kshs. 50,000/- by 30th June 2024, and another Kshs. 50,000/- by 30th July 2024. The Applicant filed a statement detailing the debts of the company, which is not disputed by the Respondent. However, despite the fact that the Applicant may be going through financial challenges, the Respondent is also entitled to a refund of her savings, which was to be refunded within 90 of notice, in 2018. We are satisfied that the Applicant is going through financial challenges and are inclined to allow them pay in instalments. The Respondent is also agreeable to instalments, albeit that the amount should be cleared within 3 months. However, this court feels that paying the instalments at Kshs. 50,000/= per month is too low and the Respondent who would take almost one year to receive all her money.

8. In the upshot of the foregoing, we make the following orders;Application dated 23. 10. 2023 is allowed in terms of:a.The warrant of arrests against the Chairperson of the Applicant, is hereby lifted.b.The Applicant to pay the decretal sum via instalments of Ksh. 80,000/- per month, payable on or before the 5th day of each month starting from the month of September 2024, until payment in full.c.The Applicant to bear the costs of this application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE - MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI - MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 29. 8.2024HON. PAUL AOL - MEMBER SIGNED 29. 8.2024Tribunal Clerk JonahGichuki Nderitu advocate for the Claimant.Portland Sacco- No appearanceNeriko advocate for the RespondentHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024