Otumba v Owiti [2025] KECPT 194 (KLR)
- Citation
- [2025] KECPT 194 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- Cooperative Tribunal
- Panel
- BM Kimemia, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Case number
- Tribunal Case E996/929 of 2022
- Language
- English
More details
- Court
- Cooperative Tribunal
- Panel
- BM Kimemia, Janet Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Case number
- Tribunal Case E996/929 of 2022
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Claimant guaranteed the Respondent's loan with Safaricom Sacco, which the Respondent defaulted on, leading to the Sacco deducting the defaulted amount from the Claimant (guarantor). Therefore, the Respondent is obligated to refund the Claimant.
Court disposition
judgment for the claimant
Orders
- Respondent to refund Claimant Ksh.391,744 with interest at Tribunal rates from the date of filing claim.
- Respondent to pay costs of the suit.
- 30 days stay of execution granted.
02
Material facts
Parties
Maxwell Otumba
Applicant Counsel: ChimeiMeshack Owiti
Respondent Counsel: Bibiu holding brief for OnyangoAmounts and remedies
- Principal Sum Awarded: KES 391,744
03
Procedural history
Posture
Civil Suit / Judgment
04
Questions and positions
Legal issues
- 01
Whether the Claimant guaranteed the Respondent any loan with Safaricom Sacco.
- 02
Whether the Respondent is liable to refund the Claimant the amount deducted by the Sacco due to the Respondent's loan default.
Party arguments
- Applicant
- The Claimant argued that he guaranteed the Respondent's loan with Safaricom Sacco. Upon the Respondent's default, the Sacco deducted Ksh.391,744 from the Claimant. He contended that the Respondent breached the contract by failing to repay the loan, and as a result, the Claimant, as guarantor, was compelled to pay. The Claimant sought a refund of the deducted amount, interest, and costs.
- Respondent
- The Respondent initially denied that the Claimant guaranteed his loan but later admitted in testimony that the Claimant was a guarantor. He argued that he did not borrow from the Claimant directly and thus owed him no money. The Respondent also contended that the Claimant had not exhausted all avenues to prevent the deduction before filing the suit, rendering the claim premature.
05
Court’s reasoning
The Tribunal found sufficient evidence to prove that the Claimant indeed guaranteed the Respondent's loan. Specifically, a Payment Guarantee dated 4.11.2019 and Loan Application Forms dated 4.11.2019 and 6.6.2019 were presented as evidence, showing the Claimant as a guarantor for loans taken by the Respondent. The Respondent also admitted during the hearing to having taken a loan from Safaricom Sacco with the Claimant as a guarantor in one case (E928 of 2022). The Tribunal concluded that the Claimant had proved the claim on a balance of probabilities, holding the Respondent liable for the defaulted amount that was deducted from the Claimant.
Legal principles
- 01
Mentioned by Claimant, not explicitly cited.
A guarantor has a secondary obligation in a loan agreement, meaning the principal debtor is primarily responsible for repayment.
- 02
General legal principle, not explicitly cited per case law/statute.
Proof of a claim on a balance of probabilities.
06
Ratio, limits and disposition
Ratio decidendi
The Claimant guaranteed the Respondent's loan with Safaricom Sacco, which the Respondent defaulted on, leading to the Sacco deducting the defaulted amount from the Claimant (guarantor). Therefore, the Respondent is obligated to refund the Claimant.
Obiter and limits
- Guarantors have a secondary obligation, but upon payment, their right to recover from the principal debtor is activated.
- The Sacco's deduction from the guarantor was lawful upon default by the principal debtor.
- The Respondent's argument that the Claimant had not exhausted other avenues before filing suit does not negate the right of recovery.
Court disposition
judgment for the claimant
- Respondent to refund Claimant Ksh.391,744 with interest at Tribunal rates from the date of filing claim.
- Respondent to pay costs of the suit.
- 30 days stay of execution granted.
Source and reliance status
Cooperative Tribunal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Cooperative Tribunal
Judgment
Otumba v Owiti (Tribunal Case E996/929 of 2022) [2025] KECPT 194 (KLR) (Civ) (27 February 2025) (Judgment)
Neutral citation: [2025] KECPT 194 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case E996/929 of 2022
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
February 27, 2025
Between
Maxwell Otumba
Claimant
and
Meshack Owiti
Respondent
Judgment
1. The matter for determination is contained in the Statement of Claim dated 18/11/2022 accompanied by the Claimant’s witness statement, documents and written submissions.
2. In the statement of claim the Claimant seeks a refund of Ksh.391,744/= savings from the Respondent, cost of the suit and interest. This position is reaffirmed in the Claimant’s witness statement dated 8. 11. 2022.
3. The Claimant’s matter came up for hearing on 16/4/2024 wherein the Claimant adopted his Statement of Claim as his evidence in Chief.
4. He stated that he guaranteed the Respondent a loan which he defaulted occasioning Safaricom Sacco to deduct the defaulted amount to the tune of Ksh.391,744/=.
5. He averred that the Respondent owed him the money that was deducted by the Sacco to repay his defaulted loan.
6. In his written submissions the Claimant avers that there is a breach of contract since the loaners who are the Respondents refused to repay their loans.
7. He avers that the guarantors have a secondary obligation in this matter and that the principal loaners should have repaid this loans.
8. The Respondent filled a Statement of Defence dated 9/1/2023 where he admits that both the Claimant and the Respondent were members of Safaricom Sacco but denies that the Claimant guaranteed him any loan.
9. The Respondent’s case heard on 8. 7.2024 wherein the Respondent witness Mr. Moses Oduor appeared for Case No. E928 of 2022. He admitted having taken a loan from Safaricom Sacco and the Claimant was his guarantor.
10. He avers that on receipt of a demand notice he was willing to discuss the default with the Claimant. He averred that he had guaranteed the Claimant loans. He admitted not sharing his loan Statements in Court. He averred that the Sacco should have exhausted all avenues to recover this money.
11. In the Respondent submissions dated 21. 11. 2024 the Respondent avers that he did not borrow from the Claimant thus owes him no money.
12. The Respondent argue that the Claimant had not exhausted available avenues to stop loan deduction before filing this case hence terms this case premature.
Analysis 13. The issue for this Tribunal to establish is whether the Claimant guaranteed the Respondent any loan with Safaricom Sacco. Evidenced was produced to support proof that indeed the Claimant guaranteed the Respondent loan. Payment guarantee dated 4. 11. 2019 is enough evidence of this guarantee-ship.
14. Loan application form dated 4. 11. 2019 for the Respondent in case No.929 of 2022 for Ksh.2. 250,000/= and guaranteed by the Claimant among other guarantor has been filed as evidence.
15. Similarly, loan application dated 6. 6.2019 for Respondent in case No.928 for a consideration of Ksh.8,500. 000/= is filed as evidence. In both the filed loan applications, the Claimant is a guarantor.
16. During the hearing of the case the Respondent admitted that they were both members of the Sacco. The Respondent denied owing the Claimant any money
17. The Respondent cannot deny that the Claimant was their guarantor for the loans they had taken with the Sacco.
Conclusion 18. We have considered the evidences of both parties and are of the opinion that the Claimant has proved that he indeed guaranteed the Respondent loan which the latter defaulted occasioning the Sacco to deduct the guarantor the defaulted amounts.
19. In this regard we find that the Claimant has proven the Claim on a balance of probabilities. We therefore enter judgement in favour of the Claimant against the Respondent and order as follows:a. Respondent to refund Claimant Ksh.391,744/= and interest at Tribunal rates from the date of filling claim.b. Plus, Cost of the suit.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBITHIS 27TH DAY OF FEBRUARY,2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 2.2025Hon. Beatrice Sawe Member Signed 27. 2.2025Hon. Fridah Lotuiya Member Signed 27. 2.2025Hon. Philip Gichuki Member Signed 27. 2.2025Hon. Michael Chesikaw Member Signed 27. 2.2025Hon. Paul Aol Member Signed 27. 2.2025Tribunal Clerk JonahChimei advocate for ClaimantBibiu holding brief for Onyango for RespondentBibiu advocate for Respondent- I pray for 30 days stay of executionChimei advocate – No objection.Order – 30 days stay of execution granted.Hon. B. Kimemia Chairperson Signed 27. 2.2025
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