[2025] KECPT 179 (KLR)

Stima DT Sacco Society Limited v Kamau (Tribunal Case E401. 346 of 2023) [2025] KECPT 179 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 179 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E401. 346 of 2023

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

February 27, 2025

Between

Stima DT Sacco Society Limited

Claimant

and

Christine Wanjiru Kamau

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 3rd May 2023. In the Statement of Claim, the Claimant claims that the Respondent was its member and that the Claimant advanced a loan to her on 23rd March 2018 amounting to Ksh. 6,000,000/=. It’s the Claimants position that the Respondent repaid the loan for only a few months before defaulting on the same. Upon default, the Claimat avers that they recovered Ksh. 1,513,694. 00/- from the Respondent’s deposit to repay the loan, and thereafter sold the property that secured the loan. However, the Claimant states that there is stinn an amount outstanding even after offsetting the Respondent’s deposits and selling the charged property. The Claimant is aggrieved and prays for:a.Kshs. 3,393,439/= being outstanding loan arrears as at 8th February, 2023. b.Any interest accrued on the loan arrears after 8th February, 2023. c.Interest on (i) and (ii) above from the date of filing the claim at court raresd.Costs of this claime.Any other and further order the Tribunal deems fit and just.The Claimant filed a Witness Statement and a List of Documents in support of her claim.

2. The Respondent did not enter an appearance or file any response to the Claim. The Claimant requested for judgement on 1st February 2024 and an interlocutory judgment was delivered on 12th March 2024 in favour of the Claimant as against the Respondent. The matter was set for formal proof on the 17th February 2025.

3. During the Formal Proof hearing, the Claimant’s witness adopted their witness statement and produced their documents. She appealed to the court to order the Respondent to repay the balance of her loan which amounted to Ksh. 4,278,081/- as the time of the hearing. She informed this court that the loan was issued at 14% per annum of a reducing balance.

Analysis 4. The question before this Tribunal is whether the Claimant is entitled to the relief sought. The Claimant’s claim is for repayment of a defaulted amount of a loan advanced to the Respondent.

5. The Claimant testified in Formal Proof, and we ask ourselves, what is Formal Proof?

6. In the case of Samson S. Maitai & Ano….Vs…African Safari Club Ltd & Ano. (2010) eKLR, the Court held that:-“…..I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.

7. Therefore, even in cases where the other party does not enter appearance and does not file a Statement of Defence, the Claimant still has the burden of adducing evidence to prove his case. The burden of proof does not leave the Claimant until that burden is discharged. The purpose of Formal Proof in this case, was for the Claimant to prove his case, to wit, that they are entitled to an order compelling the Respondent to settle the loan amount due.

8. The Claimant has produced documents that show that indeed the Respondent applied for a loan of Ksh.6,000,000/- and the same was approved on 6th June 2018. The Claimants also produced a loan statement that shows an outstanding loan balance of Ksh. 3,101,938. 27/- as at 5th May 2022, and an outstanding interest balance of Ksh. 291,501. 98/= as at January 2023. In the loan statement, this court can see a lumpsum credits in December 2022, and in May of 2022 highly probable denoting the offset of deposits and the proceeds from the sale of the charged property.

9. The Claimants informed this court that they disposed off the charged property to settle the outstanding amounts. This Tribunal has looked at the charge document that was filed by the Claimants. Section 8 of the charge is the default clause that allows the Claimat to sell the property if there is a default. It is the Claimants testimony that the Respondent indeed defaulted and the default clause was activated. This Tribunal has also noted the Demand Notice served on the Respondent, the statutory notice dated 15th January 2020, a valuation report dated 25th November 2020 by Crystal valuers ltd indicating a forced sale value of ksh. 3,000,000/-. A copy of the advert for the sale of the charged property is also produced, a notification of sale of the plot dated 18th January 2022, as well as a 45 days redemption notice dated 21st October 2021. All these documents produced by the Claimant are not controverted since the Respondent did not appear in this matter. During the hearing, the Claimant’s witness informed this court that the defauled amount continues to accrue interests and that the amount currently stands at Kshs.4,278,081/-.

10. This Tribunal has considered the oral and documentary evidence by the Claimant. This Tribunal is inclined to believe that the Claimant has discharged their evidential burden of proof on a balance of probabilities.

11. The Upshot is that we find merit in the Claimant’s Claim, and make the following ordersa.We enter judgement for the Claimant against the Respondent for Ksh. 4,278,081/- being the outstanding loan arrears.b.The Claimant is awarded costs of this claim together with interest at Tribunal rates from the date of of filing claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 2.2025HON. PAUL AOL MEMBER SIGNED 27. 2.2025Tribunal Clerk MutaiMachogu Advocate for ClaimantNo appearance for RespondentHON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025