[2024] KECPT 1507 (KLR)

Shoppers Sacco Society Limited v Siror (Tribunal Case 392/E385 of 2023) [2024] KECPT 1507 (KLR) (26 September 2024) (Ruling)

Neutral citation: [2024] KECPT 1507 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 392/E385 of 2023

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

September 26, 2024

Between

Shoppers Sacco Society Limited

Claimant

and

Patricia Gilbert Siror

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Motion filed by the Claimant dated 21st September, 2023 seeking for the following orders:1. That the Respondent’s Statement of Defence dated 16th August, 2023 be struck out.2. That the Tribunal be pleased to enter summary Judgement for the Claimant against the Respondent wherein as prayed in the Statement of Claim plus costs and interest thereof.3. That the Respondent to pay form the costs of this Application.4. That the Tribunal be pleased to issue any other relief it may deem fit.

2. That the Claimant had earlier filed a Statement of Claim dated 2nd May, 2023 and stated that the Respondent owed them Kshs. 1,032,806. 89/=. To support this claim, the Claimant attached a Verifying Affidavit, Witness Statement, List of Witnesses, Authority to Plead and List of Documents all dated 2nd May, 2023 and filed on 19th July, 2023.

3. The Respondent filed a Statement of Defence dated 16th August, 2023 and stated under paragraph7 that:“She complied with the payment of the said Loan amounts until things started turning down during Covid-19 pandemic which affected everyone country wide.”The Respondent went further to admit under paragraph 8 that:‘She is willing to settle the outstanding loan on the best and accommodative terms to be r=provided by the Claimant.’

4. It is on the basis of this admission that the Claimant filed the Notice of Motion Application dated 21/9/2023 of which the Tribunal ordered the parties on 6/6/2024 to canvass the matter by way of Written submissions.

5. Having had the benefit to read through the records In the Tribunal’s files, we have isolated two (2) issues to help us to make a reasoned determination.Issues.1. Whether the Respondent ever made payment for the Loan?2. Whether the Respondent’s Defence can be struck out?3. Who will bear the Costs?

Analysis and Determination. Issue One - Whether the Respondent made re-payments of the Loan? 6. The records in the Tribunal’s file indicates that the Respondent does not dispute that she borrowed Loan facilities amounting to Kshs. 800,000/= from the claimants. The two loan facilities were disbursed on 1/12/2021 and 6/12/2021.

7. Upon examination of the member account statement, it is clear that from the day the Kshs. 600,000/= was credited on the Respondent’s Account on 1/12/2021, there has been no payment recorded. This is a clear indication that the respondent never repaid the Loan and casts as precisions on her statement that she had been paying until Covid-19 Pandemic stuck.

8. Without delving into much details, the Respondent’s statement is unsubstantiated because according to the Loan Application form, she borrowed the Loan in December 2021 yet Covid-19 Pandemic struck in 2019. Unless the Respondent is talking about the effects of Covid-19, the Respondent cannot purport to borrow a Loan in 2021 and blame her failure to repay on the 2019 Covid Pandemic, which had happened two (2) years ago.

9. In her Replying Affidavit dated under Paragraph 6, the Respondent averred that:‘… It is not true that I owe the Claimant Kshs. 1,032,806. 89/= because before they instituted this suit, I have been paying and it’s unfortunate the said amount was not factored.’However, the Respondent did not produce/attach any evidence to show that she has been paying. On this, without evidence, we are persuaded that the Respondent did not honor her obligations to repay the Loan.

Issue 2. - Whether the Respondent’s Defence can be struck out? 10. We have read the Respondent Defence and upon analysis, we find that apart from the denials, the Respondent under paragraph 6 and 8 stated that she is willing to settle the outstanding Loan.This is buttressed by the Respondent statement in Paragraph 7 of her Replying Affidavit where she stated as follows:“That when I was served with the Statement of Claimant, I took initiative and visited the Claimant’s offices with the aim of seeking an out of court settlement where my shares of Kshs. 306,009. 63/= would be utilized to offset the Loan, but when we held meeting with the Claimant’s Chief Executive Officer he declined my request on the ground that my issue will be handled by the full board then they get back to me.”She went further to state that the Sacco never communicated to her.

11. On this, the Tribunal give a benefit of doubt to the Respondent and allow her to have a day in the Tribunal to assert her rights and to prove her repayments of her loan. We therefore disallow to strike out the Defence.

Issue 3. - Who will bear the cost? 12. A careful reading of Section 27 of the Civil Procedure Rules provides that costs follow the cause/event unless the court for some good reason orders otherwise.In this instant case since the matter will be set for hearing, we order that costs shall be in the cause.

Upshot1. Application dated 21. 9.2023 is found to be without merit and dismissed with costs in the cause.2. Mention for Pre-trial directions on 21. 1.2025. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk JemimahJapheth Ababu – PresentMetropolitan Sacco- No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024