[2021] KECPT 620 (KLR)
The Tribunal found that the respondent admitted liability for the debt but only disputed the amount. The respondent failed to provide sufficient proof of payments made beyond Kshs.55,064, and did not attach a statement of account to substantiate his claims. The Tribunal held that the respondent was not truthful...
Source-derived case information.
- Citation
- [2021] KECPT 620 (KLR)
- Parties
- Applicant: PCEA Kandara Parish Sacco Society Limited; Respondent: Charles Rubia Kimani
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 546 of 2017
- Procedural Posture
- Notice to Show Cause / Ruling on Notice to Show Cause Following Interlocutory Judgment and Application for Execution
- Outcome
- Application for execution allowed; judgment creditor may proceed to execute the decretal amount as per the notice to show cause; costs awarded to the applicant.
- Legal Topics
- Loan Recovery, Execution of Decree, Notice to Show Cause, Interest Calculation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
PCEA Kandara Parish Sacco Society Limited
Applicant
Charles Rubia Kimani
Respondent
Procedural Posture
Notice to Show Cause / Ruling on Notice to Show Cause Following Interlocutory Judgment and Application for Execution
Legal Issues
- 1 Whether the judgment debtor is liable to pay the amount being sought.
- 2 What orders should issue in default of payment by the judgment debtor.
Ratio Decidendi
The Tribunal found that the respondent admitted liability for the debt but only disputed the amount. The respondent failed to provide sufficient proof of payments made beyond Kshs.55,064, and did not attach a statement of account to substantiate his claims. The Tribunal held that the respondent was not truthful regarding the outstanding amount and that the applicant was entitled to execute the decree as per the notice to show cause. The respondent failed to show cause why execution should not issue, and the Tribunal allowed the applicant to proceed with execution for the decretal sum and awarded costs to the applicant.
Court Disposition
Application for execution allowed; judgment creditor may proceed to execute the decretal amount as per the notice to show cause; costs awarded to the applicant.
Orders
- The judgment creditor is permitted to execute the decretal amount as per the notice to show cause dated 4.10.2018.
- The judgment debtor shall pay the costs of the application.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI
TRIBUNAL CASE NO. 546 OF 2017
PCEA KANDARA PARISH SACCO SOCIETY LIMITED..........CLAIMANT
VERSUS
CHARLES RUBIA KIMANI...........................................................RESPONDENT
RULING
1. A Notice to show cause dated 4. 10. 2018 was issued by the Tribunal following an Application by the Claimant/Applicant (Decree Holder).
The said Notice to show cause emanated from a decree dated 16. 3.2018 as a result of interlocutory Judgment entered against the Respondent on 23. 1.2018.
2. The Respondent (Judgment Debtor) on the day when the Application for Notice To Show Cause was coming up requested for leave to file a Response and directions were given on 14. 10. 2020.
On 18. 11. 2020 when the matter came up for mention the judgment debtor had not filed their response and were granted another opportunity for compliance.
The Judgment Debtor filed their Replying Affidavit dated 12. 11. 2020 on 18. 11. 20.
In the said Replying Affidavit the Judgment Debtor he was not aware of the suit and judgment until when they were served with. Proclamation notice from Koemat Auctioneers on 13. 4.2018.
He stated he visited the offices of the Claimant’s Advocate herein Milimo and Co Advocates to request for more details but they refused to give him the claim.
It was only in 19. 1.2018 that he confirmed from the Tribunal that exparte judgment had been entered for kshs.278,622/=.
He further stated the sacco policy was that they were not to issue a loan more than double of one’s shares.
He stated he paid Kshs.55,064/= as at 22. 10. 2019.
The Respondent stated the Decree Holder had failed to factor any payment he had made since 2011.
3. The Claimant (Decree Holder) filed a further Affidavit dated 22. 1.2021 and filed on 26. 1.2021 stating the Respondent had not visited their offices as claimed seeking for details of the claim.
That the Respondent is yet to pay an amount of Kshs.331,546/=. And interest is rightly corrected at 1% per month which translates to 12% per annum.
4. The parties were directed to file written submissions of which the judgment debtor filed their submissions dated 22. 1.2021 on 26. 1.21.
The same were taken into consideration while waiting this ruling.
The Judgment Creditor despite being given numerous opportunities did not file their written submissions. The dates on 22. 3.2021, 7. 4.2021, 3. 5.2021 came up for mention to confirm filing of the submissions but the Judgment Creditor’s Advocate was not present.
5. The issues at hand are:
(i) Issue one:
Whether the judgment debtor is liable to pay the amount being sought.
(ii) Issue two:
What happens in default of payment?
Issue one:
Whether the judgment debtor is liable to pay the amount being sought.
The Respondent does not deny owing the Decree Holder monies but only disputes the amount.
No statement of account have been attached to show the loan balance of the Respondent and it has taken the Respondent service of Notice to show cause for them to make some payment.
We find Respondent is not being truthful of the amount owing and thus the Decree Holder needs to be paid as per the decree.
Issue two:
What happens in default of payment?
In default of payment of a loan the law provides:
“ an aggrieved party to move the court for relevant orders as against the Judgment Debtor. The Claimants (Decree Holder) in this instance applied for Notice to show Cause which were taken out and Respondent given an opportunity to defend himself.”
6. The Judgment Debtor has not given any proof of payment other than the Kshs.55,064/= paid in his attachment CRKwhich is a small portion of the loan advanced in 2011.
The upshot of the above is that:
The Judgment Debtor has not showed cause why execution should not issue hence the Judgment Creditor may proceed to execute the decretal amount as per the Notice to show cause dated 4. 10. 2018.
The Judgment Debtor to pay the costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 27TH DAY OF MAY, 2021.
Hon. B. Kimemia Chairperson Signed 27. 5.2021
Hon. J. Mwatsama Deputy Chairperson Signed 27. 5.2021
Mr. P. Gichuki Member Signed 27. 5.2021
Tribunal Clerk Leweri
Muthomi for Judgment Creditor/claimant
No appearance for Judgment Debtor
Hon. B. Kimemia Chairperson Signed 6. 5.2021