[2021] KECPT 536 (KLR)
The tribunal found that the respondent expressly admitted owing Kshs.238,537/= in his affidavit, but the applicant had already acknowledged receipt of Kshs.196,616/=. The tribunal discounted this amount from the admitted sum, leaving a balance of Kshs.46,921/= as the amount due and owing on the admitted claim. The...
Source-derived case information.
- Citation
- [2021] KECPT 536 (KLR)
- Parties
- Applicant: Rachel Wanjiru Wachira; Respondent: Alfred Omwansa Momanyi
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 311 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Payment of Outstanding Debt and Costs
- Outcome
- partial judgment for applicant on admitted sum; balance to be determined at trial
- Legal Topics
- Guarantee Liability, Loan Repayment Dispute, Summary Judgment, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rachel Wanjiru Wachira
Applicant
Alfred Omwansa Momanyi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Payment of Outstanding Debt and Costs
Legal Issues
- 1 Whether the respondent is liable to pay the outstanding debt claimed by the applicant as guarantor.
- 2 Whether the applicant is entitled to summary judgment for the amount admitted by the respondent.
- 3 Whether the respondent has discharged the debt as claimed or partially paid.
Ratio Decidendi
The tribunal found that the respondent expressly admitted owing Kshs.238,537/= in his affidavit, but the applicant had already acknowledged receipt of Kshs.196,616/=. The tribunal discounted this amount from the admitted sum, leaving a balance of Kshs.46,921/= as the amount due and owing on the admitted claim. The tribunal held that the rest of the disputed sums, including the Kshs.300,000/= allegedly paid and other prayers in the statement of claim, should be subjected to a full hearing. Judgment was therefore entered for the applicant for Kshs.46,921/= plus costs and interest, with directions for parties to prepare for trial on the remaining issues.
Court Disposition
partial judgment for applicant on admitted sum; balance to be determined at trial
Orders
- Judgment entered for the applicant for Kshs.46,921/= plus costs and interest.
- Parties to fix the matter for hearing of the disputed sum of Kshs.300,000/= and other prayers in the statement of claim.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT NAIROBI
TRIBUNAL CASE NO. 311 OF 2019
RACHEL WANJIRU WACHIRA.............CLAIMANT
VERSUS
ALFRED OMWANSA MOMANYI.......RESPONDENT
RULING
1. The matter for determination is a Notice of Motion Application dated 12. 6.2019 filed on 13. 6.2019 seeking for the following orders:
i. Spent
ii. Spent
iii. That the Defendant/Respondent be compelled to clear Kshs.346,921/= the outstanding debt owed to the Plaintiff/Applicant.
iv. That costs be borne by the Respondents .
Based on the grounds on the face of the Application supported by Affidavit of Rachael Wanjiru Wachira Claimant herein.
2. The same is opposed vide a Replying Affidavit of Alfred Omwansa deponed and filed on 3. 10. 2019.
The Application was ordered to be dispensed with by way of Written Submissions. The Claimant filed written submissions on 26. 11. 2019 together with a Supplementary Affidavit filed on 12. 4.2021 and the Respondent filed their submissions on 16. 3.2021.
The Applicant submitted that she guaranteed Respondent with others the sum of Kshs.538,537/= and the Respondent defaulted and deductions were made against the Claimant by virtue of being a guarantor that she had only received repayment of Kshs. 196,616/= and Kshs.346,921/=was outstanding on which prayer she sought the Respondent be compelled to settle.
3. The Respondent admitted to owing Kshs 238,537/= at paragraph 7 of Replying Affidavit but there was a contention for Kshs.100,000/= which Respondent claims to have settled.
The Respondent averred to have made payment of Kshs.200,000/= as per the Application of funds transfer form but the said form has no stamp or acknowledgement by a bank and the same is to be shared between the two guarantors.
She prayed for judgment on admissions for Kshs.238,537/=.
4. The Respondent submitted that the Claimant guaranteed a sum of Kshs.538,537/=which he disputes and contends avers that the amount was Kshs.346,921/= that he paid the Claimant Kshs.200,000/= on 20. 4.2014 and Kshs.100,000/= on 14. 11. 2017 making a total of Kshs. 300,000/=.
That the sum of Kshs.200,000/= was to be shared between Claimant and Jane Njeri the other guarantor. That he attached his RTGS transfer form confirming that a sum of Kshs.100,000/= was transferred and the Claimant disputed this as she did not attach her bank statement or deny the particulars of the account.
The Claimant has not discharged the burden of proof for non-payment of Kshs.346,921/=hence summary judgment cannot be granted as prayed.
5. We have carefully considered the submissions of the Claimant’s the Affidavits and documents attached. We note that 20. 2.2015 an amount of Kshs.200,000/= was paid to both guarantors. We also note that the Notice by Maisha Sacco, the notice of recovery was for Kshs.538,537/=.
In the Replying Affidavit of the Respondent he admitted owing Kshs.238,537/=and not kshs.346,921/= as claimed by the Claimant.
Based on this submission we enter judgment in favour of Claimant for Kshs.238,537/= plus costs and interests and order for parties to fix matter for hearing of the disputed sum of Kshs.300,000/= other prayers in statement of claim filed on 13. 6.2019.
Paragraph 7 of Supporting Affidavit of Claimant confirms payment of Kshs.196,616/= we therefore discount the acknowledged kshs.196,616/= against the admitted sum of kshs.238,537/= hence the balance unpaid on the admitted amount which is Kshs.46,921/= which is due and owing in the admitted claim. The rest to be subjected to trial together with the other prayers as per the statement of claim. To this end parties to file their witness statements and documents.
Mention for Pre-trial for directions on 27. 7.2021.
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
Ongegu Advocate for Respondent : Present
No appearance for Claimant.
Notice to issue for Pre- trial mention on 27. 7.2021.
Hon. B. Kimemia Chairperson Signed 27. 5.2021