[2024] KECPT 896 (KLR)

Onsongo v Nasca Sacco Limited (Tribunal Case 58/ E160 of 2022) [2024] KECPT 896 (KLR) (Civ) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 896 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 58/ E160 of 2022

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

May 30, 2024

Between

Mbeche Joram Onsongo

Claimant

and

Nasca Sacco Limited

Respondent

Ruling

1. The RespondentApplicant filed a Notice of Motion Application dated 6th September, 2023 seeking for the following orders:a.Spent.b.That this Honourable Court be pleased to stay and/ or suspend the further warrants of arrest in execution dated 2nd September, 2023 pending inter-parties hearing of the Application.c.That this Honourable Court be pleased to set aside the consent dated 4th August, 2023 and any other consequential orders and proceedings subsequent thereto be vacated pending hearing and determination of this Application.

2. In support of the Notice of Motion Application, the Applicant filed a Supporting Affidavit on 22nd August, 2023 which was sworn by Mr. Alexander Wambua – Treasurer of the Respondent Sacco and Mr. Mukiri Ngigi the Chairperson.

Brief Background. 3. On 2nd November, 2020, a demand letter was sent to the Respondent and when it did not elicit any response, the Claimant sent another demand letter dated 11th February, 2022.

4. The Claimant decided to move the Tribunal by filling a Statement of Claim dated 22nd February, 2022 and made a claim for Kshs. 189,800/= with interest and costs.

5. Summons to enter appearance dated 25th February, 2022 was served upon the Respondent on 1st March, 2022. When the Respondents failed to enter appearance and file a Statement of Defence, the Claimants vide an application dated 21st March, 2022 sought for a Summary Judgement.

6. On 19/4/2022, the Tribunal entered into a Summary Judgement in the following terms:“In the absence of a Statement of Defence by the Respondent, Summary Judgement is entered in favour of the Claimant against the Respondent for Kshs. 189,800/= plus cost and interest from the date of this Judgement.” Thereafter, a decree dated 16th May, was issued and served upon the Respondents.”

7. Upon not taking any action, a Notice to Show Cause dated 22nd June, 2022 specifically addressed to the Chairperson and the Treasurer of the Respondents was issued. As usual, this was ignored again.

8. It is until arrest warrants were issued and the arrest of the treasurer was effected, that is when the Respondents have now rushed to the Tribunal.

9. Having read, understood and considered the evidence on record for the Claimant and the Respondent, we have isolated three issues for determination;i.Whether the Tribunal can stay and/ or suspend the further warrants of Arrest dated 2nd September, 2022?ii.Whether the Tribunal can set aside the consent dated 4th August, 2023 and any other consequential orders subsequent to vacating it?iii.Who should pay the costs?

Issue I – Whether the Tribunal can stay and/ or suspend the warrants of arrest. 10. Looking at the chronology of the processing of this suit, it is not lost on the Tribunal that the Respondents ignored to respond to summons to enter appearance and file a Statement of Defence. As a result, the Tribunal invoked the provisions of Order 7 Rule 1 of the Civil Procedure Rules which state:“where a Defendant has been served with summons to appear, he shall unless some other or further orders be made by the Court, file his Defence within 14 days after he has entered appearance in the suit and serve the Plaintiff within 14 days from the date of filing the Defence and file an Affidavit of Service.”

11. A Summary Judgement was therefore entered on 19/4/2022 and served upon the Respondents. The Respondents sat on it for 17 months without any iota of response or any attempt to contact the Claimants and provide him with the explanation dated 6/9/2023.

12. We note that the Respondent/ Applicant seeks for stay and/ or suspensions of Warrants of Arrest dated 2nd September, 2022 on the ground that it is void due to the fact that there is a consent which was entered and signed on 4th August, 2023 before the chairperson of the Tribunal. Given that the Notice to Show cause was issued on 22nd June, 2022 and served upon the Respondents on 24/6/2022, the Tribunal is persuaded that the Respondents knew that they were at risk of being arrested anytime. We did not find any reason why they did not wish to address the notice thus prompting the Tribunal to issue a warrant of arrest on 2nd September, 2022, which was after three (3) months.

13. The ground that Mr. Alexander Wambua and Mukiri Ngigi are no longer members of the Respondent because both the Chairperson and the treasurer resigned from their positions on 29th March, 2023 and 8th August, 2023 respectively is laughable. Any by-stander seized of this ground would not decipher how later resignations can void warrants of arrest which here issued while the two officials were in office. This may be construed to mean that the two officials are trying to avoid responsibility.

14. Considering that the two (2) officials were in office all along during the pendency of this suit, they remain culpable until such a time that new officials are elected and assume the office of the Chairman and the treasurer. As at the date of this ruling, there is no evidence on record that the Respondent’s Sacco held an Annual General Meeting and replaced the two (2) officials. Similarly, there is no evidence on record filed by the Respondents that the Sacco is under liquidation.

Issue 2. Whether the Tribunal can set aside the consent dated 4th August, 2023 and any other consequential orders and subsequently vacate it. 15. It is true that the recorded consent was reached and recorded at the open court before the chairperson and signed by Mr. Alex Wambua, thereafter it was attached as an order of the Tribunal.

16. In the open court, we have no evidence that the Respondent raised any objection to sign the consent on the repayment of the Claimed sum and the interest. However, it was a condition in the terms of the consent that; “In default of any of the conditions (payment instalments) the whole amount to become due and warrants of arrest to issue forthwith.”

17. The terms and conditions were drafted by the Chairperson of the Tribunal having in mind that the Respondents did not refuse to settle the claimed sum. Both parties were present in court and confirmed the terms of the consent and appended their signature to confirm the same.If they had not agreed with it, nothing would have stopped them from responding when asked whether he had anything to say. Instead, the response was “I agree and have nothing to say”From the background brief, this Tribunal confirms that there is a regular Summary Judgement entered on 19/4/2022 in line with Order 10 Rule 4(1) of the Civil Procedure Rule 4(1) of the Civil Procedure Rule 2010. In the Respondents Notice of Motion Application dated 6/9/2023, none of the prayers challenge the judgement which gave birth to the Warrants of arrest and the recorded consent.

18. For a recorded consent to be set aside, there must be vitiating factors which must be proved. We have not seen a persuasive reason to prove that the consent was obtained under the vitiating factors except a mention of coercion to enter into such a consent for his release. The adage “he who challenges must prove” fall on the Respondent that he was coerced into signing a consent which was drafted by the chairperson of the Tribunal. The Respondent never proved this vitiating factor in the Notice of Motion, Supporting Affidavit or in the Written Submissions on record.

19. In conclusion, it is our finding that the prayers sought by the Respondent in the Notice of Motion Application dated 6/9/2023 are incapable of being granted by the Tribunal. We propound that the cure of a debt is to pay but not to go on a fishing expedition of excuses.As such, we hold that the Respondent’s Application and its appurtenant prayers have no merit and must fail.

OrdersWe therefore order as follows:a.That the Respondents Notice of Motion Application dated 6/9/2023 is without merit and hereby dismissed with costs.b.That costs of this Application shall be borne by the Respondent.c.File closed

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED May 30, 2024HON. BEATRICE SAWE MEMBER SIGNED May 30, 2024HON. FRIDAH LOTUIYA MEMBER SIGNED May 30, 2024HON. PHILIP GICHUKI MEMBER SIGNED May 30, 2024HON. MICHAEL CHESIKAW MEMBER SIGNED May 30, 2024HON. PAUL AOL MEMBER SIGNED May 30, 2024Tribunal Clerk JonahNo appearance by partiesRuling delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED May 30, 2024