[2023] KECPT 738 (KLR)

Supa Savings Sacco v Kiboi (Tribunal Case E166 (361) of 2021) [2023] KECPT 738 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 738 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E166 (361) of 2021

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

August 31, 2023

Between

Supa Savings Sacco

Claimant

and

Alex Maina Kiboi

Respondent

Ruling

1. The matter coming up for ruling is the Application of the Respondent/Applicant dated 10th February 2023 and filed on even date. In the said Application, the Claimant prays for orders:a.Spent.b.Spent.c.That pending the hearing and determination of this claim, a temporary order of injunction do issue against the Claimant/Respondent by itself, its agents, employees, servants and/or persons acting under its instructions and/or authorization from selling, offering for sale, transferring ownership, registering any instrument of disposition and/or in any other was dealing with and/or interfering with the Applicant’s ownership of Motor vehicle Registration Number KAX 322R (Toyota Fortuner Station Wagon).d.That a mandatory order do issue compelling the Claimant/Respondent to transfer the Motor Vehicle to Maralal Station for detention and safe custody pending the hearing and determination of this claim.e.That the costs of this Application be borne by the Respondent.

2. The Application is premised on the grounds on the face of the Application and on the supported Affidavit sworn by the Respondent on 10th February 2023. The Claimant/Respondent opposes the Application vide the Replying Affidavit sworn by Isaac Missoy on 20th February 2023. In support of the Application, the Respondent/Applicant states:i.That the Motor Vehicle Registration Number KAX 322R is still registered to Hambu Freight Services Limited who have not been enjoined to this suit to defend their interest.ii.That the Motor Vehicle Registration Number KAX 322R was not formally or informally charged as security for the loan advanced as per the Fosa Loan Application form dated 31/1/2017 which is the subject matter of the claim herein and therefore cannot be sold to recover the debt and that a ruling was delivered to that effect on 13/5/2021 vide Nyahururu High Court Civil Case Number 7 of 2019 between the same parties.iii.That the Applicant’s salary has already been attached by the Claimant to recover the entire debt owed.iv.That the Claimant/Respondent has without any colour of right, court order and without following due procedure proceeded to illegally advertise the said Motor Vehicle for sale while the instant claim is still pending hearing before court for hearing and determination.v.That the Applicant will suffer injustice, irreparable harm unless the sale is stopped.

3. In opposition the Claimant/Respondent states in the Replying Affidavit that:a.The Motor Vehicle Registration Number KAX 322R is not registered to Hambu Freight Services Limited, hence there would be no need for the said company to be enjoined in this suit.b.That the Respondent offered the said Motor Vehicle as a security under Part XI of the Fosa Loan Application Form as a security to the loan advanced to him, which loan the Respondent states is not contested and that the Applicant has defaulted repayment since 2018. c.That the Claimant/Respondent seeks to sell the Motor vehicle by virtue of Part VII of the loan application in order to recover the loan arrears due from 28/3/2018. d.That the Respondent has not been able to attach the Applicant’s salary as the same is over-committed.

4. It is not in dispute that the Applicant borrowed a loan from the Respondent to enable him purchase motor vehicle registration number KAX 322R.

5. It is not clear at this point if the Applicant did indeed change the motor vehicle to the Respondent as security for the loan, it is not in doubt that the Respondent at some point after the claimant defaulted, took possession of the motor vehicle.

6. It is argued by the Applicant that the motor vehicle is still registered to Hambu Freight Services Limited. On our perusal of documents on record, it is clear to us that at the time the respondent took possession of the vehicle, the same was still registered to Hambu Freight Services Limited. This raises two issues:i.What point did the Respondent change the registration to itself as per the annexture marked IM-1 to paragraph 4 of the Replying Affidavit.ii.If there was an intention that the motor vehicle KAX 322R would be held as a security for the loan, why did the Respondent register it to itself and not to itself and the applicant or Hambu Freight Services Limited jointly?.

7. We also note the loan application form, adduced by the Respondent that under part VII, the Applicant authorizes the Respondent….” to attach and sell my business stock or any tangible assets which is in my name……” it goes without saying that the subject motor vehicle registration number KAX 322 R was not in the Applicant’s name at the time it was purportedly attached.

8. As the Applicant’s averment that his salary is still attached to recover the outstanding amount is not rebutted by the Respondent, we are not in doubt that the Respondent continues to lawfully recover the loan amounts during the pendency of this claim.The balance of convenience therefore tilts in favour of the Applicant.

Determination 9. From the foregoing we find that there is sufficient ground to preserve the subject motor vehicle pending the hearing and determination of the claim.We hereby allow the Notice of Motion Application dated 10th February 2023, and issue the following orders:a.That pending the hearing and determination of this claim, a temporary order of injunction is hereby issued against the Claimant/Respondent by itself, its agents, employees, servants and/or persons acting under its instructions and/or authorization from selling, offering for sale, transferring ownership, registering any instrument of disposition and/or in any other was dealing with and/or interfering with the Applicant’s ownership of Motor vehicle Registration Number KAX 322R (Toyota Fortuner Station Wagon).b.Prayer 4 to await the outcome of the matter on merits.c.Costs in the cause.d.Parties to file and serve Witness Statement and Documents 14 days from today. Mention for Pre-trial directions on 11. 12. 2023 to fix matter for hearing.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahMs. Wahome advocate holding brief for Wanjiru Mureithi for Respondent.Kimani advocate for the Claimant.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023