[2023] KECPT 58 (KLR)

Omondi & 3 others v Harun (Tribunal Case 264 of 2021) [2023] KECPT 58 (KLR) (28 February 2023) (Judgment)

Neutral citation: [2023] KECPT 58 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 264 of 2021

BM Kimemia, Chair, J. Mwatsama, Vice Chair & M. Mbeneka, Member

February 28, 2023

Between

Stephen Omondi

1st Claimant

Levy Onguso

2nd Claimant

Daniel Kamau Njuguna

3rd Claimant

Benjamin Wanyande

4th Claimant

and

Abdulfaraj Ramadhan Harun

Respondent

Judgment

1. The matter for determination is Statement of Claim April 22, 21 filed on June 17, 21. The Claimants aver they were members of Kenred Savings and Credit Co-operative Society and on diverse dated. The Respondent approached them to loan guarantee. The Respondent defaulted and the Claimant’s shares were deducted in the following manner:1st Claimant – Stephen Omondi – Kshs 100,0002nd Claimant – Levy Ongoso – Kshs 100,0003rd Claimant – Daniel Kamau – Kshs 30,0004th Claimant – Benjamin Wayande – Kshs 50,000Total –Kshs 280,000The Claimant’s Claim is thus for:a.Payment of deducted loan amounting to Kshs 280,000 to the Claimant in respective shares as particularized under paragraph 8. b.Costs of this suit together with interest thereon at such rate and for such period as this Honourable court may deem fit.c.Any such and further relief as this Honourable Court may deem fit to grant.

2. The Respondents filed their Statements of Defence dated July 16, 21 filed on August 5, 21. The Respondent does not deny the Claimant stated he was paying the loan until the pandemic and his business was forced shut. He had been paying via his salary. However, in September 2019 his employer stated he would stop direct deductions from their salaries. As a result, he approached his branch made standing orders for repayment of premium.He avers the standing orders were never remitted.He prays that he was not acting with ill motives when not paying but due to circumstances beyond his control.

3. The Claimant/Applicant filed Notice of Motion dated November 10, 22 filed on February 23, 23. The Applicant sought for orders;1. That the Honourable Tribunal be pleased to enter judgement on admission in favour of the Claimant/Applicant against the Defendant/Respondent as admitted in their Statement of Defence dated July 16, 2021 and their letter dated April 14, 2021. 2.That costs be provided for.The Respondent did not respond to the Application despite service as per Affidavit of Service of Robert Nzyoka sworn on August 15, 21 and August 3, 22Having considered the pleadings, Statement of Claim, Statement of Defence and Application indeed the Respondent has no Defence as the same is a mere denial and his admitted to non payment of the loan facility which accumulated to Claimant/Applicant’s shares being attached its such Order 13 Rule 12 CPR 2010 provides that…Case of Choitran vs Nazari 1984 KLR 327Claimant/Applicant stated that a court should examine the pleadings carefully in order to establish whether there are no specific denials and no definite refusals to admit allegations of factIn the Cassman vs Sachania [1982] KLR 191 the judge discretion to grant judgement on admission of fact under the order is to be executed only in plain cases where the admissions of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgement”From the above, it is the finding of the Tribunal that the Application dated April 26, 21 is merited.Application is allowed and we enter judgement in favour of the Claimant for the sum of Kshs 280,000/= plus cost and interest from the date of filing suit.Application awarded costs for the Application.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2023. Hon Beatrice Kimemia Chairperson Signed 28. 2.2023Hon J Mwatsama Deputy Chairperson Signed 28. 2.2023M Mbeneka Member Signed 28. 2.2023Tribunal Clerk J MutaiHon J Mwatsama Deputy Chairperson Signed 28. 2.2023