[2024] KECPT 1210 (KLR)

Orient Sacco and Savings Limited v Kirungu (Tribunal Case 67 of 2021) [2024] KECPT 1210 (KLR) (30 May 2024) (Ruling)

Neutral citation: [2024] KECPT 1210 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 67 of 2021

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

May 30, 2024

Between

Orient Sacco and Savings Limited

Claimant

and

Simon Kariuki Kirungu

Respondent

(Coram: Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Ruling

1. For determination by this Tribunal is the Respondent’s Notice of Application dated 23rd June 2023 seeking for the following orders:a.Spentb.Spentc.That there be an order of stay of execution of the orders of this Honourable court, granted in its ruling delivered on the 15th June 2023. d.That this Honourable court be pleased to review the ruling it delivered on 15. 6.2023 in respect of the outstanding amount of debt and be allowed to pay the balance by installments of Kshs. 30,000/= per month starting from the date of the ruling.e.That costs of this application be provided for.

2. In support, the Respondent filed a Supporting Affidavit dated 23rd June 2023 and photocopies of Family Bank Customer Deposit Slip dated 11. 3.2022, 20. 5.2022, 5. 9.2022, 7. 11. 2022, 11. 2.2023 and 22. 5.2023.

3. In response, the Claimants opposed the Application by filing a Replying Affidavit dated 3rd August 2023 sworn by Mr. Bedan Kinyanjui Muranga- The Treasurer Despite the opposition the Treasurer confirmed that the Respondent had partly paid the decretal sum to the Claimant and provided a schedule of deposits which amounted to Kshs. 100,000/=.

4. Upon reading the Claimant’s submissions, one thing that the Tribunal would not wish to dwell on is the doubt that the amount paid by the Respondent does not relate to the decretal sum. A perusal at the last sentence of paragraph 3 of the Claimant’s written submissions depicts a call for computation of the total amount to be paid by the Respondent. this to us, a pre-mature is proposition which will be handled at the end of this case. For now what we are called upon to decide is the prayers on the Notice of Motion Application filed by the Respondent.

5. Having considered the evidence before us and the written submissions of both the parties, the issues for determination are:a.Whether we can stay the execution of our orders delivered on 15th June 2023. b.Whether the Respondent can be allowed to pay the balance of the decretal sum of Kshs. 197,282/= plus interests and costs by instalments of Kshs. 30,000/= per month.

Issue one Whether we can stay the execution of orders delivered on 15th June 2023. ? 6. The Respondent prays and pleads that his Application for stay be allowed so as to save him from civil jail which will prejudice his profession as a Head Teacher.On the other hand, the Respondent under paragraph 9 of the Respondent’s Replying Affidavit that the Tribunal should not stop the execution of the lawful decree.Paragraph 9 reads:“This Tribunal cannot be asked to stop execution of a lawful decree when these are no reasons or security provided by the Respondent. the diabolical nature and conduct of the Respondent cannot lead this court to allow his application.”

7. On this the Respondent/ Applicant states that he is a teacher by profession and committing him to Civil Jail will jeopardize his profession or career and his salary may be stopped by Teachers Service Commission. Accordingly, the decretal sum will remain unsettled for a longer period.

8. The interest in this matter is about payment of some decretal sum but not to punish anybody or jeopardize anybody’s career. We note that the last time the Respondent/Applicant paid Kshs. 30,000/= being an installment of the decretal sum was on 5. 7.2023 which is 11 months ago.

9. Further, at paragraph 10 of the Claimant’s/Respondents’ Replying Affidavit, it is stated that earlier on the Claimants had proposed to the Respondent/Applicant to pay monthly installment of Kshs. 30,000/= but the Respondent declined.Coming back later to accept the monthly payment of Kshs. 30,000/= is not fatal in our opinion provided that it is not a joke. We remind the Respondent/Applicant of the decision of the court on jokers in the case of Braeburn Limited versus Gachoka & Another (2007) where the court held that:“A person is not to be committed in a civil jail for inability to pay a debt but a dishonest and fraudulent debtor is liable to be punished by way of arrest and committal. “

10. Taking into account that the matter at hand is about a liquidated demand of a balance of Kshs. 197,282/= which is not disputed by the Respondent/Claimant and he is willing to repay by a monthly installment of Kshs. 30,000/= with effect from the date of this ruling, we are of the opinion that a second chance be extended to the Respondent/claimant.Accordingly, we hereby set aside the execution of the order to arrest and commit the Respondent/Claimant to civil jail.

Issue two Whether the Respondent can be allowed to pay the balance of the decretal sum of Kshs. 197,282/= plus interest and costs by installment of Kshs. 30,000/= per month. 11. The Respondent/Applicant is advised that praying for sympathy and paying a debt are contextually two (2) different prayers. As alluded by the Claimant/Respondent, he should just pay what is due from him and leave side shows.These prayers captured under paragraph (b) on the Respondents’/Applicant’s Notice of Motion Application dated 23rd June 2023 states:“That the Respondent/Applicant has rectified the amount of the monthly installments he promises to be paying upwards to Kshs. 30,000/= monthly and pleads with this Honourable Court to be sympathetic to him and save his career for him….”Notwithstanding whatever has happened, if the Respondents/Applicants had kept their promise to reduce the installment by now, the matter could be coming into the Tribunal for closure.

12. We are aware that the Respondent/Applicant is a Head- Teacher and a role model to his Pupils and the Teachers that he supervises. He should therefore be able to manage his affairs prudently to avoid humiliations.The Tribunal has heard his prayer to be allowed to liquidate the Claimant’s debt by paying Kshs. 30,000/= per month without fail until the full amount plus interest and costs is paid in full.In the spirit of dispensation of justice, we hereby allow the Respondent/Applicant to pay a monthly installment of Kshs. 30,000/= by or before 5th of each preceding month.

13. In conclusion, we therefore allow the prayer 2,3 and 4 in the notice of Motion Application dated 23rd June 2023 and order as follows:

Final Ordersi.That we order for a temporary stay of execution of the orders of this Tribunal granted on 15. 6.2023 pending full payment of the balance of decretal sum of Kshs. 197,282/- plus interest and previous costs.ii.1st installment due by 31. 5.2024. iii.That on the date of delivery of this ruling the Respondent/Applicant is ordered to deposit the 1st Kshs. 30,000/= on the Claimant’s account.iv.That in default of (ii) and (iii) at any given time the order under (i) above shall lapse and the orders granted by this Tribunal vide the ruling delivered on 15. 6.2023 shall take effect.v.That each party shall meet his/her costs for this Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe Member Signed 30. 5.2024Hon. Fridah Lotuiya Member Signed 30. 5.2024Hon. Philip Gichuki Member Signed 30. 5.2024Hon. Michael Chesikaw Member Signed 30. 5.2024Hon. Paul Aol Member Signed 30. 5.2024Tribunal Clerk JonahMathenge advocate for the Claimant.Kamata & Company advocate for Respondent – No appearance.Hon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024