[2021] KECPT 254 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.106 OF 2018

OBIA JEREMIAH OGOLLA.........................................................CLAIMANT

VERSUS

BOB MORGAN SACCO SOCIETY LIMITED......................RESPONDENT

RULING

1. The application for determination is dated 16. 2.2021 which was brought under Order 22 Rule 22, Order 50 Rule 8 Civil Procedure Rules 2010 and Section 3A Civil Procedure Act cap 21.

The application seeks for orders:

a. That this Application be heard ex-parte in the first instance owing to its urgency and the circumstances herein.

b. That pending the inter-parties hearing of this Application this Honourable court be pleased to grant a temporary stay of execution of the Decree herein pending the hearing and determination of this Application.

c. That the Claimant be ordered to fully account for the money paid by the Respondent through his account and through his agents Kande Auctioneers.

d. That the claimant be stopped from demanding any money from the Respondent having received a sum of Kshs.291,931/= on the strength of a conditional discharge executed between Kande Auctioneers duly appointed by the Claimant and the firm of K.A Nyachoti & Company Advocates dated 22nd March 2019.

e. That the costs of this Application be borne by the claimant in any event.

2. The same is premised on the grounds on the face of the application and Affidavit in support of Kennedy Araka Nyachoti sworn on 16. 2.2021 who stated on 18. 8.2018 the claimant extracted warrants of sale in execution of a decree and warrants of attachment for Kshs.184,931. 00/=.

The Auctioneers – Kande Auctioneers proclaimed the respondents for the sum of Kshs.184,931/= and Auctioneers charges of Kshs.39,451/= which total was Kshs.224,382/=.

That on taking account it was agreed that the balance of the decretal sum of Kshs.74,931/= was to be paid upon conditional discharge voucher which was executed on 22. 5.2019.

Acting on the conditional discharge M/s K.A Nyachoti & Company advocates paid Kande Auctioneers Kshs.74,931/= vide Co-operative Bank cheque No. 61 dated 23. 5.2019 in final settlement of decree, costs and interest.

3. That the Claimants have proclaimed the Respondent again using different Auctioneers Lijaera Auctioneers for balance of decree of Kshs.67,228/= which is not owing and costs of auctioneer whilst Kande Auctioneers had been paid in full and discharged the respondent. That unless a stay of execution is issued the Respondent stands to suffer double jeopardy.

4. The Claimant/ Respondents filed a Replying affidavit dated 9. 3.2021 sworn by Obia Jeremia Ogolla in opposition to the Application.

He stated the Applicant’s Application is devoid of merit, bad in law and frivolous and the same ought to be dismissed .

He confirmed the warrants of attachment and sale issued on 23. 8.2018 was for Kshs.184,931/= and the applicant has only paid Kshs.164,556/= which payment was done in two installments.

The Claimant avers the 1st installment was for Kshs.90,000/= paid directly to his account in Co-operative Bank Account No. 01116089862800.

The 2nd installment was paid through the auctioneers Kande Auctioneers of Kshs.74,931/= which amount he received through his advocates Messrs.’ Ann Thungu & company Advocates.

5. That the auctioneers Kande Auctioneers deny that any balance was paid to their account through EFT.

The Kshs.55,000/= paid to the Auctioneer as alleged in the conditional discharge was for proclamation and attachment and not to cover costs of the decretal sum.

That several letters have been written to the Applicant’s Advocates regarding the balance and they have not elicited any response.

That the unpaid sum of Kshs.20,000/= has earned interest and the same now stands at Kshs.67,228/= as per the fresh warrants of attachment.

No document has been tendered to evidence payment of EFT as alluded by the respondent for the Kshs.20,000/= to the auctioneers.

That the Applicant has approached the Tribunal with unclean hands by concealing material facts regarding exact payment made.

6. The Applicant’s filed a further Affidavit sworn on 18. 3.2021 by Pauline Mukonyo who was a Chairperson of Respondent. The same was done in response to the Replying Affidavit of the Claimant /Respondent.

She stated it is not disputed the decretal amount and costs of warrants issued on 23. 8.2018 was kshs.184,931/= and tabled how the same was made.

That the Claimant acknowledged receipt of all the sums other than Kshs. 20,000/= paid to Kande Enterprises and that it is upon Kande Enterprises to produce their bank statement of 1. 11. 2019 in respect of equity Bank Account No. 0600291333840 to show payment was not made.

She further averred that indeed if the interest was to accrue on the Kshs.20,000/= from June 2011 as deponed in paragraph 13 then interest would be Kshs.4,200/= and this amount owing would be Kshs.24,200 and not kshs.67,000/=.

7. That the conditional discharge was to the effect :

(a) Agreed Auctioneers fees received Kshs. 35,000/=

(b) Kandie Auctioneers received Kshs.55,000/=

(c) Claimant was paid Kshs.90,000/= directly.

That the Claimant is estopped by doctrine of promissory estopper from challenging the conditions discharged after obtaining Kshs.55,000/=.

That Kande Auctioneers would be summoned by court for cross examination.

The parties filed written submissions the Applicant filed their written submissions on 22. 3.2021filed on 13. 4.2021 and Claimants filed submissions dated 12. 4.2021 on 13. 4.2021.

The Respondent filed their written submissions dated 22. 3.2021 on 13. 4.2021 and Claimants filed their further submissions dated 13. 4.2021 on 3. 6.2021.

8. Having analyzed and considered the pleading of all the parties herein the following are the issues for determination.

Issue One:

Whether there is a balance of Kshs.20,000/= to be paid to the Decree Holder.

The Claimants wrote a letter dated 14. 8.2020 to the Respondents requesting for the balance of Kshs.20,000/=. The same was received by the Respondent. This is evidence that indeed the Claimant have always sought to have their Kshs.20,000/= balance paid up.

The Auctioneers in question -Kande Auctioneers have further written letters to the Claimant stating the Kshs.55,000/= paid to them was for their fees and costs.

The Respondents on the other hand aver that the Kshs.20,000/= paid to Kande Auctioneers was to be transmitted to Claimant and their costs was agreed at Kshs.35,000/= hence the condition discharge signed by Josphat Kata of Kande Auctioneers.

9. We find that from the documentation and computation the respondent did not finalize their payment that was due to the claimant. The same is still outstanding.

It is with this in mind that now we ask the interest chargeable and if calculated the time frame.

The Claimants have evidenced that as of June 2018 they were following up on the balance of Kshs.20,000/= and thus we find that the Kshs.20,000/= payable interest shall be calculated from the time the same was due.

The Respondent paid the amounts in batches and now Kshs.20,000/= is still owing.

The upshot of the above is that the Application dated 16. 2.2021 fails.

Respondent to pay Claimant as per the Decree dated 3. 12. 2020 Kshs. 33,068/= plus costs of Kshs.29,910/= total Kshs.62,978/= plus costs of the Application assessed at Kshs.10,000/= to be paid by the Respondent/Applicant.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.

Hon. B. Kimemia Chairperson Signed 29. 7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 29. 7.2021

Mr. Gitonga Kamiti Member Signed 29. 7.2021

Tribunal Clerk Charles Maina

Kilonzo for Claimant

No appearance for Respondent

Hon. B. Kimemia Chairperson Signed 29. 7.2021