https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/259

Oduor v Asili Sacco Society Ltd (Tribunal Case 342 of 2015) [2026] KECOPT 259 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KECOPT 259 (KLR) Republic of Kenya In the Cooperative Tribunal Civil Tribunal Case 342 of 2015 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 18, 2026 Between Maurice Onyango Oduor Claimant and Asili Sacco Society Ltd Respondent Judgment 1.The amended Statement of Claim dated 19th January, 2023 was filed as a result of breach of contract, the failure to disburse to disburse the agreed loan amount and for illegal attachment.According to the Claimant, that on 7th June,2011 the Claimant and the Respondent entered into a loan agreement for the sum of Kshs. 883, 000/= to be paid at an interest of 1% on reducing balance payable within a period of 36 months.That the Respondent on the 13th July, 2011 disbursed to the Claimant a sum of Kshs. 336,693.55/= and thereafter refused, ignored or neglected to disburse the remaining balance, informing the Claimant that the Respondent was facing financial problems and that he should proceed to repay only the amount he was disbursed at the agreed rate.That on 22nd April, 2015 the Respondent intentionally attached the Claimant properties totaling a sum of Kshs. 997,000/= and when the Claimant went to the Respondent’s offices to inquire about the reasons for the attachment, he was informed that the Respondents had disbursed to him a loan of Kshs. 883,000/= and not 336,693.55/=When negotiations failed, the Claimant reported the matter to the police and later also filed this claim seeking among others:a.An order for full account statementb.An order for compensation for irregular and illegal attachmentc.An order for compensation for the loss of daily income arising from the illegal attachmentd.Return of the illegally attached properties in the state they were during the attachment, or in the alternative, the Respondent to pay the Claimant the amount of the attached properties. 2.The Respondent filed their Statement of Defence dated 8th July, 2015 stating among others that they offered a loan of Kshs. 883,000/= to the Claimant and the Claimant failed to honour the terms and conditions of the loan agreement leading to the attachment. It was also their position that the Claimant was in arrears of Kshs. 950,323/= as at 23rd April, 2015 which amount continued to accrue. Hearing 3.At the hearing, the Claimant testified that he does not owe the Respondent as he serviced the loan until 2021 when he finished paying what was disbursed to him plus interest. It was also his testimony that the Respondent did not return the items that we attached, and that he had shares worth Kshs. 336,000/= by the time he took the loan.Vincent Odeny testified on behalf of the Respondent and stated that they disbursed a sum of Kshs. 883,000/= to the Claimant and the Claimant still owed the Respondent a sum of Kshs. 556,000/= as arrears. It was also his testimony that as part of recovery, they had deducted the Claimant’s shares of Kshs. 315,000/= but did not pursue his guarantors as they attached the Claimant’s propertiesOn cross-examination, the witness did not provide any statement of account before the year 2020 and claimed that the Respondent had migrated from one system to another and as such it was difficult to get the data before the year 2020. The witness also did not provide any evidence of how much was disbursed to the Claimant and when it was disbursed. The witness also stated that the properties were taken by auctioneers and he didn’t have a report of what happened to the properties. Written Submissions 4.The Claimant filed his written submissions dated 11th March, 2024 stating among others:i.That in 2006, the Claimant requested for the first loan from the Respondent and he was issued with Kshs. 600,000/= and after completing payment of the said loan, in 2011, the Claimant proceeded again and requested for a loan worth Kshs. 900,000/=, the Responded approved Kshs. 883, 000/= and released Kshs. 336, 693/= to the Claimant which was paid to the fullest.ii.That the Respondent being the custodian of the loan and disbursement documents has intentionally and deliberately refused, ignored and or neglected to supply the Tribunal with any document to confirm the amount that was issued to the Claimant’s account, how he withdrew the amount and how he had been paying the said amount and any default if any.iii.That at the time of the attachment, the Claimant had not been served with any notice of the impending attachment and/or default in payment of loan 5.The Respondents filed their written submissions dated 13th May, 2026 stating among others:i.That the amended Statement of Claim is bad in law by virtue of the Limitations of Actions Actii.That the amended Statement of Claim is statute barred and the Claimant has failed, neglected and or refused to seek leave to extend time to amend the Statement of Claim out of timeiii.That the Claimant had up to April, 2021 to do all the amendment that were necessary to bring out his case the best way he wouldiv.That how much the Claimant applied for, and how much was approved is not in dispute. The only issue in dispute is how much the Claimant repaid for the sum advancedv.That the Claimant has not demonstrated how he repaid the loan advanced and what was the balance as at the time of the attachmentvi.That the attached goods are still in the custody of the auctioneer who is an officer of the Honourable Court, and if there is misconduct on the part of the auctioneer, the auctioneer can be held accountablevii.That the Tribunal should grant the counter-claim amount of Kshs. 556,241/= in favour of the Respondent.We have considered the claim, the defence filed in response, the evidence adduced at trial and the submissions filed, and there are only two questions remaining for determination as follows:I. Whether a Preliminary Objection can be raised in Written Submissions, andII. Whether either party have proved their claims. Whether a Preliminary Objection can be raised in Written Submissions 6.In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a Preliminary Objection (PO) is defined as a pure point of law, which has been pleaded or arises by clear implication from pleadings, and which, if argued, has the potential to dispose of the entire suit. It must not require evidence or refer to disputed facts. The key components of a valid preliminary objection as per the case include:i.Pure Point of Law: It must be based solely on legal arguments, such as jurisdiction, limitation of time, or that the parties are bound to refer the dispute to arbitration.ii.Disposes of the Matter: If successful, the PO must end the case or the specific claim.iii.Based on Pleadings: The objection must arise from the case as pleaded (plaint or defense) and not from evidence.iv.No Factual Disputes: A PO cannot be used if the court needs to investigate facts, call witnesses, or look at evidence to decide the issue.First, in this particular case in as much as a plea of limitation has been raised, we are guided that such a point cannot be raised in submissions as submissions are not pleadings or evidence. What is presented in submissions is for focusing the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim or disprove it. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal in relation to submissions stated:“Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 7.As such, the Respondent cannot be allowed to introduce new evidence at the submission stage that the amended statement of claim is statute barred, without that evidence having been availed and cross-examined during the hearing.Second, in as much as a point of law has been raised in the form of limitation of action, it is not a pure point of law in this particular case, as evidential proof is still needed, evidence that may still be challenged by the legal doctrine of estoppel.This Tribunal being a court of record has checked its records of proceedings, and those records return the verdict that the Respondent during the hearing knowingly and voluntarily without any objections cross-examined the Claimant on the contents of the amended Statement of Claim, and as such, is prevented by the legal doctrine of estoppel from changing their position or raising issues at this stage as an afterthought on the legal validity of the amended statement of claim. Has either party proved their claims? 8.It is important to note from the onset that cases are proved by evidence and the party who intends to prove the existence of any fact, has the burden of proving the existence of that fact. This is succinctly set out in Sections 107-109 of the Evidence Act, Cap 80 which state:107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”Which party has the burden of proof was addressed by the Court of Appeal in the locus classicus case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the court held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 9.This in essence mean that the burden of proof is neither on the Claimant nor the Respondent but on the party that alleges specific matters. It is on the party who alleges. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.”In this particular case, the Respondent alleged that they disbursed the whole of the approved Kshs. 883, 000/= without producing evidence of the disbursement. Attaching the loan application form to show how much was approved is not the same thing as disbursing what was approved, and the failure of the Respondent to discharge that burden of proof persuades this Tribunal to believe that not the whole of the approved amount was disbursed.On the other hand, during the hearing, the Respondent witness confirmed that the auctioneer they had engaged (their agent) attached the properties of the Claimant and that witness did not dispute the fact that what was attached was returned to the Claimant. That discharges the burden of proof that what was attached was never returned. Final Orders 10.The Amended Statement of Claim dated 19th January, 2023 partly succeeds with the Respondent ordered to pay the Claimant the amount of the attached properties, a sum of Kshs. 997,000/= plus costs and interest from the date of filing suit. JUDGMENT DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE, 2026.HON. J. MWATSAMA CHAIRPERSON SIGNED 18/6/2026Hon. Beatrice Sawe Member Signed 18/6/2026Hon. Fridah Lotuiya Member Signed 18/6/2026Hon. Michael Chesikaw Member Signed 18/6/2026Hon. P. Aol Member Signed 18/6/2026Court Assistant - MutaiMr. Mboya advocate for the ClaimantMr. Getange advocate for the RespondentMr. Getange advocate;We pray for 30 days stay of execution and seek certified copies of proceedings and judgment.Mr. Mboya advocate;We have no objectionTribunal order;30 days stay of execution granted.Hon. J. Mwatsama Chairperson Signed 18/6/2026