[2023] KECPT 767 (KLR)

Queensway Cooperative Savings and Credit Cooperative Society Limited v Rwakihembo (Tribunal Case 723 of 2015) [2023] KECPT 767 (KLR) (Civ) (21 September 2023) (Judgment)

Neutral citation: [2023] KECPT 767 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 723 of 2015

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

September 21, 2023

Between

Queensway Cooperative Savings and Credit Cooperative Society Limited

Claimant

and

Hilda Basa Rwakihembo

Respondent

Judgment

1. This judgment is in relation to a Plaint/Claim which was unsigned but filed before the Tribunal on 23. 11. 2015 seeking for:-a.Payment of outstanding Kshs. 408,148. 33/=b.Interest on (i)c.Costs of this suit.The Claimant’s claim is supported by the Claimant’s Statement, List of Documents and List of Witnesses which were all filed in the Tribunal on 23. 11. 2015.

Background 2. The Respondent detail in paragraph 2 of her Statement of Defence that in or about 2005 she was a member of the Claimant’s Sacco.Through a Loan Application form dated 14. 9.2005(attached with the documents) she applied and was granted a loan of Kshs. 750,000/= by the Claimant Sacco. The loan was repayable within thirty-six (36) months from 30th November 2005. In her witness statement dated 4th October 2022 and filed on 14th November 2022 at paragraph 4, the Respondent confirm the receipt of the granted loan of Kshs. 750,000/= by the Sacco.At paragraph 6(a)- (q) in the same witness statement the Respondent gives a chronology of dates. Cheque numbers and amounts that she made in repayment in liquidation of the loan.At the end of her statement the Respondent contend that she repaid her loan in instalments such that as at March 2007 there was no loan arrears.However on the flipside, she stated that she was not supplied with her loan statements for the months of April to December 2007, and for 2008 and 2009. To emphasize on this point, the Respondent at paragraph 15 of her witness statement stated as follows:“I recalled my shares in the Claimant Sacco in or about November 2007 and instructed the Claimant Sacco to use a portion of my shares to redeem my said loan and in or about November, 2007 paid fully by the Claimant Sacco all sums due to me on account of shares and dividends.”

3. The Respondent moved this Tribunal via the application stated in paragraph 2 of this judgment for the recovery of Kshs. 408,148. 33 owed by the Respondent.On 7th November 2018 the Claimant argued out that the Respondent did not comply to file the Statement of Defence within the period stated thus the Claimant sought for summary judgment which was dismissed as per the tribunal ruling delivered on 10th December 2018. On 4th October, 2022 they filed a notice of motion anchored under order 50 Rule 6 of the Civil Procedure Rules and Section 2A, 2B and 3A of the Civil Procedure Act and sought for the following orders:i.That the application be certified as urgent.ii.That the 30 days given to file the Statement of Defence and other annextures be enlarged to the date that the said witness statement and documents were filed.iii.That costs occasioned be in the cause.After protracted exchanges by the counsel of the parties on the date set for hearing on 14. 11. 2022 regarding documents the Tribunal ruled as follows:“(a)By consent, the Notice of Motion application dated 4th October, 2022 be allowed.(b)The Respondents witness statement dated 4. 10. 2022 filed on 14. 11. 2022 and the Respondents list of documents dated 4. 10. 2022 filed on 14. 11. 2022 are deemed as dully filed and are part of the court record.”

4. On 17th April 2023 the hearing commenced. The Claimant called their 1st witness CW1 named Kiptoo Kiplagat Kirui to testify, he adopted the witness statement before he was cross examined and re-examined. Thereafter the Claimant’s case was closed.

Summary Of Claimant’s Case 5. Next, to testify was the Respondent RW1-Hilda Basa Rwakihambo who adopted her witness statement and was cross examined , re -examined before the Respondent’s case was closed.CW1-Kiptoo Kiplagat Kirui stated that he is employed as an accountant by the claimant. Having adopted his witness statement he produced the documentary evidence and confirmed that the Respondent owed the Claimants Kshs. 408,148. 33/=.It was his testimony that based on the produced loan amortization list dated 13. 4.2023, the Respondent was to make monthly payments of Kshs. 24,910. 73/= from October 2006 for 3 consecutive years which was not done religiously as expected.He further stated that the change in membership number of the Respondent from QKIP-001 to QSSO-132 was as a result of digitization which the Sacco undertook.The witness stated that the digitization of the Claimant’s account records did not alter the old loans but it was meant to eradicate the practice of issuing account numbers based on where the member is employed.

Summary Of Respondent’s Case 6. After adopting her witness Statement, RW1 Hilda Basa Rwakihembo in her testimony stated that she took a loan of Kshs. 750,000/= against her shares which she does not remember. She dwelt on the contents of the amortization form at page 9 and 6 where it showed her re-payments of the loan by cheques.On being cross-examined regarding some exchanges of emails with a Mr. Jack about her willingness to pay her loan. She confirmed on the affirmative.At the close of the hearings the Tribunal ordered the Claimants to file and serve their written submissions within 14 days, from today. Similarly, the Respondents were given 14 days to file and serve their response. The date to confirm compliance was set to be on 12. 7.2023. On the mention date of 12. 7.2023 each of the parties confirmed that they filed and served their written submissions as ordered.

7. Having considered the various applications filed by each of the parties, Witness Statements, List of Documents, List of Witness, Orders of this Tribunal, Hearing proceedings and the written submissions by the parties, we identify the following issues for determination.

Issues For Determination 8. a.Whether or not the Respondent owe Kshs. 408,148. 33/= to the Claimant.?b.Whether or not digitization of members records by the claimant affected the loan balances held by her members.?c.Whether or not the Claimants have proved their case.

Analysis And Determination Issue One: Whether or not the Respondent owe Kshs. 408,148. 33 to the Claimant. 9. The Witness Statement of the Claimant at paragraph – 2 state that the respondent received the amount stated in the plaint and that the demanded sums are outstanding, due and payable by the Respondent.In his evidence in chief, the Claimants witness produced list of documents dated 27. 10. 2015, 15. 3.2023 and 13. 4.2023 and marked them as exhibits 1,2,and 3. The documents produced include:i.Current members loan statement in the name of the Respondent dated 13. 1.2023. ii.Copy of the loan application form dated 14. 9.2005. iii.Copy of loan amortization schedule.In the written submissions of the Respondent, a lot of efforts is put on paragraph 14-18 to bring out the academic disposition of section 65, 65(1), 66, 67, 68 and 69 in an attempt to dispel the admissibility or otherwise of the documents.On this, the Claimants at paragraph 3. 5.8 of their written submissions objected to the opposition on the production of the copies by the Claimant’s witness and stated thus:“the advocate for the respondent never requested for the examination of the documents or objected to the list of documents…Further, throughout the hearing of the matter the advocate for the Respondent did not raise any objection to the production of the documents to the extent that he relied on the same documents produced as evidence during cross examination..”At paragraph 3. 5.9 the claimants went on to state that: “the objection being raised after the hearing has been completed is completely un-procedural, yet the advocate for the Respondent did not seek orders from the tribunal to have the claimants to avail the original copy of the statement of account.”To determine this issue, the tribunal is guided by Article 159 (2) (d) of the Constitution of Kenya 2010 which provide that:“Justice shall be administered without undue regard to technicalities.”On the same breath, Section 4 of the Cooperative Tribunal (practice and procedure) Rules 2009 provides that:“The Tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities of procedure.”The above set of laws makes it abundantly clear that Cooperative matters should not be subjected to the intricacies of academic disposition such as undated or unsigned documents provided the parties do not dispute their contractual relationship.It is therefore our contention that the produced statement/documents show the amount demanded of Kshs. 408,148. 33 under the Respondent’s name whether the statement is signed or not and that the Claimant has owned it.

10. The attempt of the Respondent to rope in the names of the guarantors as explained in paragraph 6,7,and 8 of the written submission is irrelevant at this stage and is hereby discarded.

Issue Two: Whether the digitization of the members records by the Claimant affected the loan balances? 11. During hearing, the Claimants witness explained that the Sacco digitized its operations and thereby allocated new numbers to her members and each member’s old loan balances was not altered.This oral explanation was not objected to safe for the amount indicated as opening balance of Kshs. 521,599. 33/= which was termed as hearsay by the Respondent because it was not supported by any document or transaction statement.It is the view of the Tribunal that the above line of thinking is unwarranted because being a member of the Claimant Sacco, the Respondent could visit the offices of the Claimant and request to be supplied with her old loan statement before the digitization and compare with the balances in the new digital platform.

Issue three: Whether or not the Claimant has proved the case. 12. The Tribunal is of the view that without the production of how the Respondent repaid her loan with the Claimants systematically upto the end, it becomes clear that she did not settle the amount. Undoubtedly the Tribunal is alive to the fact that she listed down a number of cheques which she issued to the Claimant to repay the loan but it has been proved by CW1 that the cheques did not clear the outstanding amount even then two (2) of the cheques listed were written in favour of another party.

13. Conclusively, we find that the Claimants have proved their case on a scale of probability.

Upshot 14. Having interrogated the issues for determination, and having exercised our minds in the determination of the issues, we hereby enter judgment in favour of the claimants as follows:i.Payment of the outstanding amount of Kshs. 408,148. 33/= plus cost and interest.ii.That we allow interest on (i) above.iii.That costs shall be to the claimant.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHWamalwa advocate for the RespondentNjoroge advocate for the ClaimantWamalwa advocate – We pray for 30 days stay of execution .Njoroge advocate – We object to 30 days. This is an old matter.Tribunal order:30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023