[2023] KECPT 805 (KLR)

Owino v Huduma Sacco Society Ltd (Tribunal Case 539 of 2019) [2023] KECPT 805 (KLR) (Civ) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 805 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 539 of 2019

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

August 31, 2023

Between

Stephen Owino

Claimant

and

Huduma Sacco Society Ltd

Respondent

Ruling

1. Ruling on the Respondent’s Notice of Motion Application dated 27. 6.2022Before us for determination is the Respondent’s Notice of Motion Application dated 27. 6.2022 filed on 30. 6.2022. In the Application, the Respondent prays for the following orders:a.Spentb.That this Honorable Tribunal does issue a temporary order or stay the execution and set aside warrants of arrest issued herein, pending the hearing and determination of this Application inter parties.c.That the Respondent be allowed to pay the decretal sum in monthly installments of KSH 10,000/=d.That the cost of this Application is in the cause. The Application is based on the grounds on the face of the Application and the Affidavit of Mr. Lony Murithi sworn on 27th June 2022.

2. The Respondent’s/Applicant’s Case

The Respondent/Applicant relies on because:1. The Respondent was not issued with a Notice to Show Cause arising from ex-parte Judgment.2. The Respondent has liquidity arising from previous systemic financial management of the Society.3. That the Respondent stands to suffer prejudice unless the stay and setting aside orders are not issued.4. That it is in the best interest of justice that the Court does stay the execution pending hearing and determination of this Application.5. That unless a stay of execution is granted, this Application will be rendered nugatory and of no value. 3. In the Supporting Affidavit, the Deponent deepens that:1. The Respondent’s Chairman was never called to be notified of his requirement to appear in the Tribunal nor is he aware of anybody by the name of David Omondi who purportedly received the Motion on his behalf.2. The Respondent has numerous cases in the Tribunal against the little income it gets from the few members remaining and that obligations from outstanding credit facilities have been received from Sacco.3. The Respondent proposes to clear the decretal sum in monthly installments of Ksh 10,0000/= per month till payment is in full.4. The Respondent has a cash flow deficit which resulted from the massive withdrawal of membership.5. The Respondent stands to suffer prejudice unless the stay and setting aside of arrest orders are not issued6. That the Application will be rendered nugatory.

4. The Claimant opposed the Respondent’s Application vide a Replying Affidavit sworn on 14th October 2022 by Stephen Owino, the Claimant, and filed on 14th October 2022.

The Claimant depones that:1. The Respondent Application is a shame, an abuse of the Tribunal, and is incompetent before the Tribunal.2. The Respondent does not deny the knowledge of one Mr. David Omondi who received the said Notice to show cause on his behalf as deponed by the process server and that’s the reason he filed the said Application.3. The Respondent having admitted having liability to the Claimant, never deserved the stay orders and has not given justifiable reasons to stay judgment herein illegal together with consequential orders.4. The Respondent has kept on the matter since 2017 when the Claimant sought for withdrawal and 2019 when the suit herein was filed.5. That the Respondent’s Application is an afterthought meant to delay the Claimant’s regularly deserved merits of Judgment.6. The Respondent has not given substantive grounds why a matter of 2019 has not been settled despite the small amount involved.7. That the debt is old, admitted the Claimant can only indulge a maximum of two equal monthly installments.

Determination 5. Whereas the Respondent/Applicant disputes proper servings with the Notice show cause herein, it is clear that it has admitted owing the Claimant the Judgment amount.It is therefore in the interest of Justice or the Tribunal to labor on the issue of whether there was proper service or not.The Respondent has expressed an intention to pay the decretal amount in monthly installments of Ksh 10,000/= until payment in full.The Claimant, however, deems it a mockery of Justice and abuse of Tribunal, stating that the Respondent is still active and giving out loans and other services to members while constraining to illegally withhold the Claimant’s contributionsWe have considered the parties' averments and the circumstances of the case and deem most to make the following orders:1. That the warrants of arrest herein are hereby lifted and of stay of execution is granted.2. That the Respondent is allowed to pay the decretal sum herein in full inclusive of cost and interest within thirty (30) days from the date hereof.3. That in default of full repayment within thirty (30) days aforementioned, warrants of arrest to be reinstated and evacuation to proceed against the Respondent’s current offices.4. The cost of the Application is granted to the Claimant/Decree Holder.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahRuling delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023