[2020] KECPT 15 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.205 OF 2019

SUSAN OTIENO..............................................................CLAIMANT

VERSUS

LILIAN AWUOR ATHOO.................................1ST RESPONDENT

MICHAEL SARUNI ............................................2ND RESPONDENT

BILLY BRIAN OMONDI....................................3RD RESPONDENT

SHIRIKA SACCO SOCIETY LIMITED...........4TH RESPONDENT

RULING

What is before us for consideration and determination is the Claimant’s Application dated 8. 4.2019. It seeks, for the following Orders:

1. Spent;

2. That the 4th Respondent herein be restrained from further deducting the Claimant’s salary in recovery of the loans guaranteed by the Claimant and advanced by the 4th Respondent to the 1st, 2nd and 3rd Respondents pending interparties hearing and/or final determination of this Application;

3. That the 4th Respondent herein be restrained from further deducting the Claimant’s salary in recovery of the loans guaranteed by the Claimant and advanced by the 4th Respondent to the 1st, 2nd and 3rd Respondents pending final determination of the claim herein; and

4. That costs of this Application be provided for.

The Application is supported by the grounds on its face and the following Affidavits:

a. Supporting Affidavit sworn by the Claimant on 8. 4.2019; and

b. Further Affidavit sworn by the Claimant on 17. 7.2019.

The Respondent has opposed the Application by filing a Replying Affidavit sworn by Grace Nyangi, the 4th Respondent’s Credit Manager on 21. 5.2019.

Vide the directions given on 4. 8.2020, the Application was canvassed by way of written submissions. The Claimant filed hers on 15. 9.2020 while the 4th Respondent did so on 15. 9.2020.

Claimant’s Contention

Vide the Instant Application, the Claimant contend that since she has instituted the instant claim to seek recoveries of monies deducted from her by the 4th Respondent be restrained from further effecting the said deductions. She avers that she guaranteed the 1st, 2nd and 3rd Respondents for loans applied for on diverse dates in the years, 2017 and 2018. That the breakdowns of the loans applied by then in as follows:

1. 1st Respondent - Kshs.1,500,000/= on 15. 12. 2017

Kshs. 900,000/= on 11. 1.2018

b. 2nd Respondent - Kshs. 500,000/=

c. 3rd Respondent - Kshs. 500,000/=

Total Kshs.3,400,000/=

4th Respondent’s Case

On its part, the 4th Respondent avers that the Application is incompetent and fatally defective since the prayer for a temporary injunction is not supported by a prayer of a permanent injunction in the main claim.

That the Claimant is a guarantor of the 1st , 2nd and 3rd Respondents. That the said Respondents have defaulted in repayment of the loan they took aggregating to Kshs.3,400,000/=. That having failed to repay the said loan, the 4th Claimant is within its rights to recover the said loan from the Claimant. That if the court were to grant the prayers sought, then the same would amount to re-writing the contract for the parties. That it therefore seeks for the Application to be dismissed with costs.

Claimant’s further Affidavit sworn on 17. 7.2019

Vide this Affidavit, the Claimant has faulted the 4th Respondent for discriminately recovering the defaulted amount from her and leaving the other two guarantors. That the 4th Respondent has attached the entirely of her salary.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant has established a proper basis to warrant the grant of a temporary injunction;

b. Who should meet the costs of the Application?

Temporary injunction

We have jurisdiction to make an order regarding temporary injunctions by dint of order 40 of the Civil Procedure Rules. Order 40 Rule 1 (a) provides thus:

“ Where in any suit it is proved by Affidavit or otherwise –

a. That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit, until the disposal of the suit or until further orders.

Before exercising the above jurisdiction, we are guided by the Principles enunciated by the court in the case of Giella – versus- Cassman Brown [1973] EA. They include:

a. A prima facie case with a probability of success;

b. Irreparable damage; and

c. Balance of Convenience.

The court in the case of Mrao Limited versus first American Bank of Kenya Limited (2003) eKLR explained what Constitute a Prima Facie case in the following terms:

“.......A Prima Facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right and the probability of the Applicant’s case upon trial. It is a case which on the material presented, to the court, a Tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation from the latter......”

The question that arises is whether the Claimant has established a prima facie case with a probability of success. The Claimant borne of contention is that the 4th Respondent has maliciously attached a bigger chunk of her salary in a bid to recover the loans defaulted by the 1st, 2nd and 3rd Respondents. That the 4th Respondent has only opted to recover the said loans from her and leaving behind two of the 1st, 2nd and 3rd Respondents other guarantors. That having lodged this claim with the Tribunal, it is only fair that the said deductions be halted.

We have perused the loan Application forms annexed to the Replying Affidavit sworn by Grace Nyangi on 21. 5.2019. We note that the Claimant guaranteed the 1st, 2nd and 3rd Respondents as follows:

a. 1st Respondent - Kshs. 300,000/= for the loan of Kshs.900,000/=

b. 3rd Respondent - Kshs.250,000/= for the loan of Kshs.500,000/=

The Claimant has annexed the said forms to her Supporting Affidavit sworn on 8. 4.2019.

What we deduce from the said forms is that the amounts guaranteed by each guarantor is expressly indicated in the loan Application form and signed for by each of the guarantors. In the event of default, the guarantor will be liable for attachment to the extent of the amounts guaranteed. What then is the Claimants contention? We have not heard the Claimant allege that whatever is being recovered is more and above what she guaranteed. All she aver is that the 1st, 2nd and 3rd Respondents have defaulted in repaying the loan and that since she has lodged the instant claim, then an Order of injunction should automatically issue. Put it the other way round, the Claimant contends that the 4th Respondent should not commence attachment of her salaries unless it does so for the other guarantors. Better still, the Claimant contend that the 4th Respondent has raided on her payslip over and above what is limited by law. We find that the summation of all these grounds do not warrant the issuance of a temporary injunction. The Claimant knew very well the arena she ws getting laid when she accepted to guarantee the Respondents the said loans. She cannot now seek refuge in this Tribunal now that chicken have come home to roast.

Conclusion

The upshot of the foregoing is that we find that the Claimant has not established a Prima Facie case with a probability of success. With this conclusion we stop at this principle and down our tools. We find no need to consider the other two limbs of the principles enunciated in the Giella -vs- Cassman Brown case. We therefore dismiss the Claimant’s case with costs in the cause.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY THIS 3RD DAY OF DECEMBER, 2020

Hon. B. Kimemia Chairperson ...........................

Hon. F. Terer Deputy Chairman ............................

Mr. P. Gichuki Member ..............................