[2019] KECPT 48 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 217 OF 2019

SHARON WANGAI………………………………………………..……………CLAIMANT

VERSUS

LINDA WACHEKE GITAU.………..………………………………..……..RESPONDENT

RULING

The matter for determination is a Notice of Motion applications dated 5. 4.2019 by the claimant and respondent’s application dated 10. 5.19 on these applications, a ruling date had been issued for 21. 8.19 however, on the same date, the parties indicated to the tribunal that there was new developments in the matter and the parties were to come back on 24. 10. 19 to record a consent. However, on the said date filed another application under certificate of urgency seeking for a ruling date be issued to the 2 applications since the parties had not agreed .

We therefore set a ruling date for the 2 application owing to the fact that both application filed under certificate of urgency and parties had not agreed.

The application dated 5. 4.2019 seek the following orders:-

1. Thatthis application be certified as extremely urgent and be heard forthwith ex-parte and service be dispensed of in the first instance.

2. Thatpending the determination of this application an order do issue compelling the respondent to immediately start repaying her loan of Kshs.1,000,000. 00 together with the attendant interest with Mentor Sacco Society Limited until completion of payment of the said loan.

3. Thatpending the determination of this suit an order do issue compelling the respondent to immediately start repaying her loan of Kshs.1,000,000. 00 together with the attendant interest with Mentor Sacco Society Limited until completion of payment of the said loan.

3. Thatan order do issue for the attachment of movable and immovable properties in satisfaction of the decree.

4. Thatwarrants of arrest do immediately issue against the respondent in lieu of failure to immediately repay Kshs.1,000,000. 00 together with the attendant interest towards Mentor Sacco Society Limited being the amount of money the respondent borrowed from the said Sacco.

5. Thatan order do issue barring the respondent from all travel outside kenya until repayment in full of Kshs.1,000,000. 00 together with the attendant interest loan taken from Mentor Sacco Society Limited.

6. Thatin the alternative to (6) above an order do issue directing the respondent to deposit her passport with the honorable tribunal pending the determination of this application and suit.

7. Thatthe Officer Commanding the Station (OCS) Kilimani Police Station do oversee and ensure compliance of the orders issued.

8. Thatcosts of this application.

Based on the grounds on the face of the application and the supporting affidavit of the claimant.

The respondent also filed an application dated 10. 5.19 seeking the following orders:-

1. Thatthis honorable tribunal be pleased to review the order issued on the 24th April 2019 and extended on 8th May 2019.

2. Thatpending the hearing and determination of this application this honorable tribunal be pleased to set aside the orders issued on the 24th April 2019 and extended on 8th May 2019.

3. Thatin the alternative to the above the claimant be compelled to deposit with the tribunal maintenance costs required in process of civil jail to cater for the respondent.

4. Thatthis honorable tribunal do issue an order against the claimant to serve all the necessary documents pertaining to this claim upon th respondents advocates.

5. Thatcosts of this application be in the cause.

Based on the grounds on the face of the application and supported by the supporting affidavit of LINDA WACHEKE the respondent herein.

The same is opposed vide the replying affidavit of the claimant filed on 18. 6.19. Parties filed their written submissions to canvass the application dated 10. 5.19.

We will deal with each application individually noting that the parties argued orally on the application dated 10. 5.19 which came on 4. 7.19.

On the application dated 10. 5.2019, the advocate for the applicant submitted that the respondent should start repaying the sacco which was still owed and the claimant being the guarantor who is still repaying the loan.

That the respondent should take up her obligation and the claimant sought for the orders as prayed and interim orders be enforced since the respondent was not keen in repaying the loan of Kshs.1. 8million issued to the respondent.

That the claimant is a mother and the deduction in her salary to repay the respondent’s loan at an amount of Kshs.36,000/= per month will greatly affect her family.

That the claimant needed the money to take care of her responsibility and to run her home and not to repay the respondents debts.

That there was no good will demonstrated by the respondent in the repayment of the loan.

In response, the advocate for the respondent proceeded under protest in view that they alleged to have filed a judicial review matter which touched on the conduct of the tribunal in this matter.

That there was money owed by the respondent to Mentor Sacco and that the respondent requested the said Mentor Sacco to cease debiting the claimant.

That Mentor Sacco accepted the proposal to the effect that Kshs.49,000/= remittance was to begin in June and she deposited Kshs.25,000/- in May.

That she committed herself to settle the matter and if the orders as prayed for if granted would defect the cause of justice.

That the issue of security was not prayed in the Notice of Motion.

That the claimant cannot claim for Kshs.1million since the agreement was between the respondent and Mentor Sacco.

That the prayer for civil arrest was unreasonable as it would interfere with the respondent’s businesses.

That the prayer of holding the passport was unreasonable, premised on the prayer that the respondent was a flight risk and that her family are not residents in Kenya.

That, the respondent was law abiding citizen and that her daughter was in school in Kenya and that the respondent runs various businesses which requires foreign travel therefore the claimant should not insist on holding the passport.

That the application should be dismissed since the response entered agreement with Mentor Sacco who is owed by the respondent.

In response, the claimant submitted that there was no evidence of payment and the agreement between the respondent and the Sacco was that they would cease debiting the account of the guarantor if the respondent paid Kshs.49,000/= on a monthly basis without fail.

That the letter presented on the agreement was not signed therefore its genuineness cannot be confirmed.

That the claimant was suffering as a result of the respondent who should take up her responsibility in settling the loan.

We have carefully considered the submissions of the parties and note the the passport of the respondent is still held by as security as ordered.

We also note that the respondent did not file any replying affidavit in the matter despite having been granted leave on 4. 6.2019. Even when the matter came up for hearing on 14. 6.2019 the respondent had still not filed any response but instead filed a judicial review matter in the High Court under Notice of Motion application dated 10. 5.19 seeking for review and setting aside of orders issued on 24. 4.2019.

However, since the parties oral submissions in the matter, we have considered the same and in the light of the application to set aside the orders previously issued as per the Notice of Motion dated 10. 5.19, we have considered the written submissions by both parties.

The applicant/respondent has submitted that they had already deposited the passport at the tribunal under order 39 Rule 1. Provides for arrest and attachment before judgment.

That this rule is only applicable if the court is satisfied by affidavit or otherwise that the defendant has left or is about to leave the jurisdiction of the court.

That there was no affidavit or formal application made for issuance of warrant of arrest.

That the claimant has failed to prove that the respondent intended to abscond or leave the jurisdiction of the tribunal or that she had disposed of any property to furnishing the respondent cited authorities and averred that the respondent had no intention of leaving the country owing to the fact that she had a child in school.

That all these were not considered in the issuance of the orders of 8. 5.19 and 24. 4.2019.

That further the applicant was not offered sufficient time to retain and consult an advocate and respond to the application dated 4. 4.19.

That the applicant suffered substantial injustice when she was taken to Kilimani police station.

That the respondent has been negotiating on payment plan with Mentor Sacco for the repayment of her outstanding loan and since the rights of the respondents were infringed the orders should be set aside.

The claimant in response submitted that the tribunal has jurisdiction in the matter as vested under section 3A, Civil Procedure Act, and 78 (2) Cooperative Society Act.

That the orders issued were not final in nature as claimed by respondent.

That the respondent failed to repay her loan of Kshs.1,498,600/= leaving the claimant being the guarantor to repay the same. That despite trying to reach the respondent to explain failure to service his own loans. The respondent did not give any response.

That it is clear that indeed the respondent defaulted and that the claimant was bearing the burden of repayment. That the respondent is a frequent traveler and given her track record of refusal to repay the loan, leaving the claimant stranded with the loan proves that the respondent is a flight risk on the orders were justly issued and served the ends of justice.

That the respondent has not demonstrated sufficient reason to set aside the orders as granted. That indeed the respondent was accorded an opportunity to be heard since she was served on 27/4/2019 and showed up on the tribunal on 8/5/2019 and was accorded more days to file a response.

That she admitted having defaulted and that she travelled out of the country often. That the orders issued were as a result of the respondent’s failure to service her loan. That she had not demonstrated any intention to repay the said loan despite the orders issued.

We have carefully considered the submissions of the parties in regard to the application dated 10/5/2019, seeking to set aside the orders. We note that the tribunal has jurisdiction under section 79 of Co-operative Societies Act.

Section 79 (1) (a)” the tribunal may make such orders for the purposes of securing the attendance of any person at any place; the discovery or production of any document or ……….”

Section 79 (5) “the tribunal shall have unlimited geographical and pecuniary jurisdiction in matters of co-operative disputes”.

Rule 4 of Co-operative Practice and Procedure Rules 2009, “the tribunal shall have power and discretion to decide all matters before it with due speed and dispatch without undue regard to technicalities or procedure”.

Rules 3 also provides that “Nothing contained in these rules shall limit or otherwise affect the inherent power of the tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the tribunal.”

Hence, based on the above provisions of the law applicable in the circumstances, the tribunal was within its mandate to issue the orders.

The tribunal gave fair opportunity to the respondent to respond to the claim and the application as evidenced by the records indeed after issuance of the interim orders on 24. 4.19.

Hearing interparties was ordered on 8. 5.19 when the respondent appeared in person and sought for an adjournment.

“I propose to postpone the matter for 2 to 3 weeks to give my proposal to release the guarantor. I have a ticket which expires in August………”

on that day, the matter was adjourned and leave was granted with orders for the respondent to file and serve any response if need be to canvass the Notice of Motion dated 5. 4.2019 and to the claim within 14 days.

On 13. 5.19 the respondent filed this current application under Certificate of Urgency and accordingly the respondent was heard and orders issued.

On 4. 6.19 the respondent had still not filed any replying affidavit and the matter was ordered to proceed with the application dated 5. 4.2019 and the advocate on record proceeded with the submissions in opposition of the said application. The respondent was therefore granted adequate time to present pleadings and to consult an advocate and to respond to the application and the claim.

We therefore find owing to the fact that the respondent was duly served, appeared before the tribunal, sought for time which time was granted. The respondent cannot thereafter purport not to have been granted an opportunity to present/defend the claim and application.

In considering an application for setting aside ex-parte orders it has been established in SHAH VS MBOGO and ONGOM VS OWOTA that the court must be satisfied about one of two things-

(a) “That either the defendant was not properly served or

(b) The defendant failed to appear in court due to sufficient cause”.

In the present case the respondent was duly served and appeared in person and later by advocate , hence the conditions for setting the said orders have not been satisfied. In the circumstances we find that the application by the respondent dated 10. 5.19 has no merit and dismissed accordingly with costs.

On the application dated 5. 4.2019 we note that we had already granted orders in terms of prayer 2,6 (7) and 8 hence the only prayers pending for determination are prayers no. 3. 4, 5.

In regard to prayer 3, we grant the same owing to the fact that this is a confirmation of prayer 2 and that the respondent had confirmed default in repayment of her loan with Mentor Sacco Limited.

For prayers 4, we find the same is not applicable in the 1st instance since there is no judgment or decree on record.

In regard to prayer 5 the same is not applicable in the first instance owing to the fact that the matter is still pending hearing and determination.

For prayer 6 since prayer 7 is already satisfied as an alternative for prayer 6, and the passport of the respondent is in the custody of the tribunal, we confirm prayer 7 as an alternative for prayer 6 and which gives effect to prayer 6.

Costs in the cause.

This Ruling essentially dispenses the Notice of Motion dated 24. 10. 19.

Read and delivered in open court, this 7th of November 2019.

In the presence of:

Claimant:Miss Wangui for Applicant.We served as per affidavit of service filed on 6/11/19.

Respondent:None-appearance.

Court Assistant:Leweri and Buluma.

B. Kimemia - Chairman-signed

R. Mwambura – Member-signed.

P. Swanya - Member-signed.