[2021] KECPT 603 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 545 OF 2017

PCEA KANDARA PARISH SACCO SOCIETY LIMITED ........ CLAIMANT

VERSUS

JOHN MIGWI MWAURA..............................................................RESPONDENT

RULING

1. A Notice to show cause dated 4. 10. 2018 was issued by the Tribunal following an Application by the Claimant/Applicant.

The said Notice to show cause emanated from a decree dated 23. 8.2018 as a result of interlocutory Judgment entered against the Respondent.

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 claims his motor vehicle KAD 344 P was attached by auctioneers in a bid to satisfy the decretal sum. He further states the Judgment Creditor have not accounted for it.

3. He further avers having made some payment to the bank totaling to Kshs.42,000/= and some payment via Mpesa to Koimet Auctioneers whose figure is not stated.

4. The Decree Holder filed a Further Affidavit dated 22. 1.2021and filed on 29. 1.2021 stating Judgment Creditor had not visited their offices as claimed.

The Judgment Debtor volunteered his motor vehicle and was not repossessed as alleged. However, no sale could happen as the said motor vehicle was not in the Judgment Creditor’s name and he was not in possession of the original logbook.

5. 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.

6. 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.

It is not in doubt the judgment debtor owes the Decree Holder for a loan he took of which remains unpaid.

Decree Holder is seeking to recover Kshs.284,310. 00/= of which ought to be paid.

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.”

7. The Judgment Debtor has not given any proof of payment other than the Kshs.42,000/= paid in his attachment JMMI which is a small portion of the loan advanced in 2008.

The motor vehicle he claims was to be used as collateral there is no evidence to show the motor vehicle is registered in his name and it fetched the amount of money he alleged.

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 of the application.

Ruling signed, dated and delivered virtually this 27thday 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 Advocate for Claimant.

No appearance for Judgment Debtor.

Hon. B. Kimemia Chairperson Signed 27. 5.2021