[2024] KECPT 1406 (KLR)

Ukristo na Ufanisi Sacco Society Limited v Ndung’u (Tribunal Case 179/E200 of 2023) [2024] KECPT 1406 (KLR) (Civ) (29 August 2024) (Ruling)

Neutral citation: [2024] KECPT 1406 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 179/E200 of 2023

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

August 29, 2024

Between

Ukristo na Ufanisi Sacco Society Limited

Claimant

and

Samson Thiga Ndung’u

Respondent

Ruling

1. Before this Tribunal for determination is a Notice of Preliminary Objection Application dated 5th June, 2023 filed by the Respondent seeking to struck out the Claimant claim of Kshs 4118,600. 40/= on the following ground:a.That the suit is time barred and offends the mandatory provisions of section 4 (1) of the Limitation of Actions Act

2. The Respondent avails the Claimants should be estopped from bringing the claim which arose in 2016 and which period accordily to the act could effectively and 2022. Further the respondent avail that as a result of acquiescence by the claimant the Sacco waived her rights to enforce the terms of the Loan Agreement

Claimant Cases 3. The Claimant filed a Statement of Claim dated 27l2l2023 on 27/3/2023 and sought for orders against the Respondent for:a.For payment for Kshs of 4,118,600. 40/=b.Interest on (a) above at courts rate from November 2022 until payment is made in fullc.Costs the suit and interest on it until payment is made in full

4. In support of its claim the Claimant attached Witness Statement sworn by Dennis Kabiru Mwangi, a Verifying Affidavit, authority and consent by the Sacco, List of Documents and List of Witness all dated 27th February 2023.

5. The Respondent filed a Notice of Preliminary Objection Application dated 5th June, 2023 and anchored his objection on Section 4(1) of Limitation of Actions Act.

The Respondent Case 6. Under paragraph 23 of the Respondent Statement of Defence, the Respondent stated that he made payments of the loan to the best of his ability and him fulfilled the terms of the loan agreement it is the Respondent’s Statement that he was an employee of the Claimant and 30th June 2016 the Claimant suspended him from 1st July 2016 to 31st July 2016 pending investigation into some alleged misconductVide a letter dated 30th June, 2016, the Chairman of the Sacco Claimant advised the Respondent that during the suspension period he was to be paid half salary until such a time that he was to be reinstated

7. This is emphasized in paragraph 5 of his Witness Statement which state that:“Although the claimant ought to have issued the Respondent half of his salary during to the suspension period the Claimant has not paid the Respondent and salary for the time he has been on suspension up to until today”

8. Having analyzed the Claimant set of documents and the written submissions together with the Respondent Defence and written submission. We will proceed to determine.“Whether the Claimants claim is time barred and that the Preliminary Objection is merited?To answer this question we have to examine the member Statement of Account of the Respondent as printed out on 11/12/2022. This Account Statement show that the loan was debited in the account of the Respondent in 2016 after he had filled and signed a Loan Application/ Agreement dated 3/3/2016 with the Claimants.

9. The same member statement account clearly saw that Respondent paid the loan on various dates in 2016,2017,2019 and the last payment of Kshs 50,000/= was made on 14th June 2021 and another amount Kshs 50,000/= was made 16/7/2021

10. From our reading of the Claimant and the Respondent written submission it is clear that the parties are pulling on different directions as to when the breach/default of the loan repayment started.

11. Under paragraph 7 of the written submission the Respondent state that the time started to run from 31st July 2016 when the Claimants indefinitely suspended the Respondent without providing any salary - while under paragraph 15 of the Claimants written submissions the claimants state that the cause of action arose on 17th July 2021 when the Respondent defaulted in making payments

12. In his Preliminary Objection the Respondent anchored his argument on Section 4(1) of the Limitation of Actions Act, cap 22 Laws of Kenya which provide that actions founded on contract should not brought after 6 years from date when the course of action occurred.The court in the case of Odero and another Versus Ndivo and another 2021 pronounced itself clearly on this matter by stating as follows:…”It is only when one of the parties happen to be in breach of the contract that a possible cause of action arises as at the date of the alleged breach and not the end of the contract period.”

13. In the member Statement Account printed on 11/12/2022 we have pointed out that the respondent repaid the loan upto 16/7/2021. This means that the default started after that date and therefore the time stared to run from them.

14. Based on the facts above, we find that the Preliminary Objection Application dated 5/6/2023 is found to be without merit and dismissed with costs in the cause. Mention for Pre-trial directions on 4. 12. 2024. 31873

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk JonahWairimu advocate for the ClaimantMbugua advocate for the RespondentHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024