https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/298

 **REPUBLIC OF KENYA** **IN THE COOPERATIVE TRIBUNAL AT NAKURU** **TRIBUNAL CASE NO. 023 OF 2026** **(Coram: Hon. J. Mwatsama - Chairperson, Hon. B. Sawe - Member, Hon. F. Lotuiya - Member, Hon. M. Chesikaw - Member and Hon. P. Aol - Member.)** **SUSAN NYOKABI………..……………………………....……1ST CLAIMANT** **SAMUEL WACHIRA…………………………………………..2ND CLAIMANT** **VERSUS** **GLADYS MUTHONI KAMAU……………...…………………..RESPONDENT** **RULING OF THE TRIBUNAL** 1. The matter before the Tribunal for determination is the Claimants’ Notice of Motion Application dated 6th May, 2026, brought under Order 13 Rule 2 of the Civil Procedure Rules, 2010, Sections 1A, 1B, 3, 3A and 3B of the Civil Procedure Act. 2. The Claimant’s application is for ORDERS: - 3. THAT Judgement on admission be entered against the Respondent in favour of the Claimants in the sum of Kshs. 1,034,606.61 4. THAT interest be awarded on the decretal sum until payment in full; 5. THAT the cost of this suit and of this application be awarded to the claimants. 6. THAT such further and other relief as this Honourable Tribunal may deem fit and just be granted. 7. The Application is premised on the grounds that the suit filed on 30th January, 2026 seeking recovery of losses arising from the Respondent’s default non-payment of two loan facilities advanced by Tower SACCO for which the Claimants acted as guarantors resulting in the offset of their joint deposits; that the Respondents’ statement of defence and witness statement contain clear, unequivocal, deliberate and unambiguous admissions on all foundational facts of the Claimants’ cause of action; that the Respondent admits: 8. Taking the loan of Ksh. 900,000/= on or about 14th August, 2020 and a further loan of Ksh. 950,000/= on or about 5th March 2021 under paragraph 4 of the Statement of Defence as read with paragraphs 4 and 5 of the Witness Statement. 9. That the Claimants together with other guarantors executed guarantees in respect of the said loans as stated under paragraph 6 of the Witness Statement. 10. That she defaulted on repayment of the loans due to Covid-19 pandemic under paragraph 6 of the Statement of Defence as read with paragraph 7 of the Witness Statement. 11. That Tower SACCO consequently offset the arrears from the Claimants’ joint deposits under paragraph 8 of the Witness Statement. 12. Confirms receiving the demand letter dated 30th September, 2025 under paragraph 9 of the Statement of Defence. 13. The Claimants aver further on the grounds that the admissions are formal, made on the pleadings and in the witness statement and go to the root of liability; that they are *“as plain as a pikestaff”* and sufficient to entitle the Claimant to immediate judgement. 14. The limited general denials in the defence do not displace the clear admissions on liability. 15. Proceeding to full trial in the face of such admissions would be contrary to the overriding objectives under Sections 1A and 1B of the Civil Procedure Act and would occasion further prejudice and unnecessary expense to the Claimants. 1. Further, in the Supporting Affidavit sworn by the 1st Claimant on 6th May, 2026, the Claimants reiterate some of the grounds of the application and aver further that despite the admissions, the Respondent has failed, refused or neglected to indemnify the Claimants and they continue to suffer substantial prejudice through loss of deposits and the declared interest rebates. **RESPONSE TO THE APPLICATION** 1. In opposition to the Application, the Respondent filed a Replying Affidavit sworn on 29th May, 2026, wherein she states that: 2. The Application is misconceived, premature, bad in law and an abuse of the process of the Tribunal; 3. The Respondent’s Statement of Defence and the Witness Statement raise triable issues which can only be determined through a full hearing; 4. The Claimants have selectively extracted portions of the Respondent’s defence and witness statement and deliberately ignored the entirety of the defence and the context in which the averments were made; 5. While the Respondent admitted obtaining loan facilities referred to by the Claimants, such acknowledgement doers not amount to an admission of liability to the Claimants for the sum of Ksh. 1,034,606.61 or any other sum whatsoever; 6. The issues surrounding the loan facilities, the guarantees executed, the manner in which the loan accounts were administered, the amount allegedly recovered through offsets and the extent of any liability remain contested matters requiring evidentiary proof; 7. The defence expressly raises issues concerning the circumstances under which the default occurred, the impact of the COVID-19 pandemic, the actions taken by Tower Sacco and the relationship between the claimants’ alleged loss and the Respondent’s liability; 8. The alleged admissions relied upon by the Claimants do not constitute clear, unequivocal, unambiguous and unconditional admissions capable of supporting the entry of judgement under Order 13 Rule 2 of the Civil Procedure Rules; 9. The Claimants have not demonstrated that the Respondent owes them the specific sum claimed or that she accepted responsibility for the entire amount allegedly deducted or offset from their deposits; 10. The quantum claimed by the Claimant is disputed; 11. The issues for determination include, whether the Claimants are entitled to recover the amount claimed from the Respondent; whether the amount claimed has been properly computed and proved; the legal effect of the guarantees allegedly executed; the extent of any liability attributable to the Respondent; Whether the Claimants are entitled to the reliefs sought. 12. It is a well-established principle of law that where a defence raises bona fide triable issues, however weak they may appear, a party ought to be afforded an opportunity to fully ventilate their case at trial; 13. Entering judgement at this stage would occasion the Respondent substantial prejudice by denying her the opportunity to present evidence and challenge the Claimants’ assertions through cross-examination; 14. The interests of justice require that that this matter proceeds to hearing on its merits. 15. The parties were on 11th May, 2026, directed to canvass the application by way of submissions. However, as at the date of writing this Ruling, only the Respondent had filed written submissions. **ANALYSIS AND DETERMINATION** 1. We have considered the application and the affidavit in support thereof, the statement of Claim, the Response to claim, the Replying Affidavit and the Respondent’s Written Submissions. 2. ***The issue for our determination is whether or not the Claimant’s Application has merit.*** 3. In the Statement of Claim, the Claimants have sought the following prayers: 4. Judgement against the Respondent in the sum of Ksh. 1,034,606.61; 5. Interest on (a) above till date of payment in full; 6. Damages; 7. Costs of this suit and interest thereon; and 8. Such further or other relief as this Honourable Tribunal deems fit and just. 9. The Claimants seeks that Judgement be entered against the Respondent on account of admissions that she has made in the Statement of Defence and Witness Statement. The Respondent opposes the Application, on the ground that the Defence and witness statement raise triable issues. 10. *Order 13 Rule 2 of the Civil procedure Rules* provides that ***“Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just”.*** 11. Order 13 Rule 2 requires that judgment is entered on the basis of admission of facts. The question we must ask ourselves therefore is whether or not the Respondent, in her defence and statement, made any admissions of facts that warrant the entry of judgement as prayed in the statement of claim in exercise of the Tribunal’s discretion. 12. We agree with the submissions of the Respondents that for judgement on admission to be entered, the admission must be very clear, equivocal and unambiguous, as has been held in numerous decisions. 13. (Havelock J) in [*747 Freighter Conversion LLC v One Jet One Airways Kenya Ltd & 3 Others*](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/5239), HCCC No. 445 of 2012 held that there is no point in letting a matter go for a trial if there is nothing to be gained in the trial. 14. Likewise, the courts have held for instance in [*Express Automobile Kenya Limited v Kenya Farmers Association Limited & Another*](https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1080), that the power to enter judgement on admission is not mandatory but discretionary. It should be exercised upon an examination of the facts and prevailing circumstances. Where there is a genuine dispute over any material fact or if the defense raises a plausible argument that could potentially lead to a different outcome, the application for judgment on admission ought to be denied so as to allow the matter to proceed to full trial. 15. In the present case, though the Respondent admits borrowing loans of Ksh. 900,000/= and 950,000/= which were jointly guaranteed by the Claimants the Respondent also admits that she defaulted in paying the said loans and the SACCO recovered the sums due from the Claimants’ savings. 16. However, the Respondent has not expressly admitted that she owes the Claimants the sum of Ksh. 1,034,606.61 which is claimed by the Claimants as the principal sum. 17. We find that there is no clear, unambiguous and unequivocal admission of the claimed sums. 18. It is necessary therefore to take the matter to trial in order for the Tribunal to ascertain the composition of the amount of Ksh. 1,034,606.61 and determine whether or not the Claimants are entitled to the said principal sum claimed in full, in the circumstances. 19. It is our finding therefore, that the Claimants’ application has not met the threshold for entry of judgement on admission hence it is not merited. 20. Consequently, the Claimants’ Application dated 6th May, 2026 is hereby dismissed. 21. The costs of the Application shall be in the cause. 22. The matter will be mentioned on the **15th** day of **October, 2026** to take a hearing date. Ruling dated and delivered *virtually* at **Nairobi** this **16th** day of **July, 2026.** **Hon. J. Mwatsama Chairperson Signed 16/7/2026** **Hon. B. Sawe Member Signed 16/7/2026** **Hon. Fridah Lotuiya Member Signed 16/7/2026** **Hon. M. Chesikaw Member Signed 16/7/2026** **Hon. P. Aol Member Signed 16/7/2026** Court Assistant – J. Koki Mr. Gitau Gikonyi advocate for the Claimant Ms. Foro advocate for the Respondent **Tribunal order;** 1. Leave granted to the Respondent to file and serve the amended Statement of Defence, and Amended List of Documents/Witnesses, within 14 days. 2. Claimant granted leave to file and serve Further/Supplementary Documents upon service of the Amended Defence. **Hon. J. Mwatsama Chairperson Signed 16/7/2026**