[2024] KECPT 1682 (KLR)

Taifa Sacco Society Limited v Michere (Tribunal Case 415 of 2019) [2024] KECPT 1682 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1682 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 415 of 2019

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

October 3, 2024

Between

Taifa Sacco Society Limited

Claimant

and

Evans Gichuki Michere

Respondent

Ruling

1. The Notice of Motion Application of the Defendant/Applicant dated 21/11/2023 is before the Tribunal for determination. In the said Application, the Defendant prays for the following orders;a.Spent.b.That this Honourable Court be pleased to review, vary, discharge and/or set aside the orders issued on 15/11/2023. c.Spent.d.That this Honourable Court be pleased to issue orders setting aside the orders for warrant of arrest issued against the Defendant/Applicant.e.That costs be in the cause.

2. The Application is based on the face thereof and supported by the Affidavit of the Defendant, Evans Gichuki Michere sworn on 21/11/2023 and the Supplementary Affidavit sworn on 11/07/2024. The Plaintiff responded to the Defendant’s Application vide the Replying Affidavit sworn by Haron Muchiri Gathoni on 15/07/2024. The Defendant responded to the Plaintiff’s Replying Affidavit vide sworn by him on 18/09/2024.

Defendant/Applicant’s Case. 3. The Defendant states that between 14th and 16th November 2023; that on 15/11/2023, when he did not attend Court on account of the illness, Warrant of Arrest was issued against him by the Tribunal. That by the said 15/11/2023, the Defendant had started making payment towards the Decretal sum and had filed payment receipts, but for some reason, the same was not considered by the Tribunal. That he intends to continue making payments. The Defendant deponed further that despite orders made by the Tribunal that he be supplied with his account balance statement, the Plaintiff only supplied with loan statement, showing the principal amount and the interest thereon. That on the loan statement, short term loan, the dates of transactions are not clear. That in addition to the loan statements, he needed to be furnished with Bank Statements showing deposits and withdrawals. That all the payments he had been making through the Plaintiff’s advocate have not been captured in the loan statements supplied. That the Plaintiff has also failed to supply him with the Statement of his shares account that had a deposit of Kshs. 326,000/=. That he requests the Tribunal to make further orders directing the Plaintiff to supply him with legible copies of short-term Loan Bank account statement showing deposit and withdrawal transactions and statement of his shares account.Further, the Defendant states that he is not willing to pay. That he has struggled to pay the decretal sum due to financial hardship. That he is making all efforts to abide by the court order.

Plaintiff’s Case 4. In response to the Defendant’s Application, the Plaintiff’s advocate depones and states that there is no good reason why the orders of 15/11/2023 should be reviewed. That other than a sick-off sheet, there is no medical report shown to Court with evidence of the Applicant being bed-ridden. That the Applicant has not complied with the orders issued by the Tribunal on 8/3/2023 in that he did not pay the sum of Kshs. 100,000/= as he was directed on the said date. That whereas the Applicant indicated in his Affidavit of means dated 22/3/2023 that he could only afford Kshs. 5,000/= every month, he did not make any payments until February, 2024. That the payments made by the Defendant through the Plaintiff’s Advocate are as follows:a.12/2/2024 – Kshs, 10,000/=b.15/2/2024 – Kshs. 5,000/=c.26/2/2024 – Kshs. 10,000/=d.21/3/2024 – Kshs. 5,000/=e.18/4/2024 – Kshs. 5,000/=f.16/5/2024 – Kshs. 5,000/=g.25/5/2024 – Kshs. 5,000/=h.29/5/2024 – Kshs. 5,000/=That from the said payments, the Defendant can pay, only that he is not willing. That the Defendant’s Application should be dismissed as the same has no basis as it is only meant to delay execution of the Honourable Tribunal’s judgement.

Analysis and Determination. 5. We have considered the defendant’s Application and the Affidavits filed in support thereof. We have also considered the Affidavit filed by the Plaintiff in Reply to the Application. We note from the record that on the 15/11/2023, the Defendant did not attend Court but he sent a representative who informed the Tribunal that the Defendant was unwell hence was unable to attend the Tribunal.The said representative did not at the time he appeared at the Tribunal avail any medical document in support of the Defendant’s illness. However, we have seen the sick-off sheet, medical card and receipt produced by the Defendant in respect to his illness at the time and we are inclined on a balance of probability, to believe that he was unwell.

6. We have also noted that the Defendant has made an effort to make some payment through the Plaintiff’s advocates, which payments are more or less in line with his Affidavit of means.We have noted further the issue of account statements raised by the Defendant in the Affidavit and confirm from the record that on 19/6/2023, the Defendant made a request to be issued with Statement of Account, the Defendant’s contention that he has not been supplied with the correct account statements is not controverted by the Plaintiff. We say this in full cognizance of the fact that the only Replying Affidavit herein has been sworn by the Plaintiff’s Advocate and therefore has not addressed certain matters of fact raised by the Defendant including the issue of the Bank Account Statement and the shares account.

7. In view of the foregoing, we hold that the Defendant’s Notice of Motion Application dated 21/11/2023 has merit. We thus allow the same in terms of the orders 2 and 4 and we issue further orders as follows:1. The Application Notice of Motion dated 21. 6.2024 lacks merit and is hereby dismissed with no order as to costs.2. File ordered as closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. Hon. B. Kimemia - Chairperson Signed 3. 10. 2024Hon. J. Mwatsama - Deputy Chairperson Signed 3. 10. 2024Hon. Beatrice Sawe - Member Signed 3. 10. 2024Hon. Fridah Lotuiya - Member Signed 3. 10. 2024Hon. Philip Gichuki - Member Signed 3. 10. 2024Hon. Michael Chesikaw - Member Signed 3. 10. 2024Hon. Paul Aol - Member Signed 3. 10. 2024Tribunal Clerk MutaiMs. Sirma advocate holding brief for Mr. Muchiri advocate for the Claimant.Ms. Kipruto advocate holding brief for Kwengu advocate for the 1st RespondentMr. Wanda advocate holding brief for Mr. Juma for the 2nd RespondentHon. J. Mwatsama - Deputy Chairperson Signed 3. 10. 2024