[2024] KECPT 252 (KLR)

Unga Employees Co-operative Savings and Credit Society Limited v Mwangi (Tribunal Case 221 (E231) of 2022) [2024] KECPT 252 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 252 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 221 (E231) of 2022

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

March 7, 2024

Between

Unga Employees Co-operative Savings and Credit Society Limited

Claimant

and

Njoroge Stephen Mwangi

Respondent

Ruling

Ruling of The Tribnal 1. The matter before the Tribunal for determination is the Notice of Motion dated 13. 2.2023. Around September, 2018, the Respondent applied for a loan with the Claimant transferring a sum of Kshs 1,800,000/= to the Respondent which was to be repaid in 60 monthly installments.The Respondent defaulted on repayment and by the date of filing this Claim 20th April, 2022, the outstanding balance plus interest stood at Kshs. 1,096,756/=.Upon being served and failing to file a Defence, the Claimant requested for judgement on default of filing a Defence under order 10 rule 4 (1) of the Civil Procedure Rules and on 14th December, 2022, this Tribunal entered judgment with a Decree of Kshs. 1,327,137/= being ordered on 28th December, 2022. On 4th February, 2023, the Claimant served the Respondent with a proclamation of attachment of moveable property notice and upon being served, on 13th February, 2023, he approached this Tribunal through an Application seeking among others:i.That this Tribunal be pleased to grant him leave to enable him liquidate the decretal sum in equal monthly instalments in full.ii.That as a consequence of being allowed to liquidate the decretal sum by paying by installments, this Tribunal should be pleased to set aside the warrants of attachment and sale issued to Baseline Auctioneers proclaiming his goods.

2. The Application was supported on the ground that the Respondent was a layman and was acting in person and instead of filing a Defence, he filed a letter explaining his circumstances particularly the underperformance of his business and his mother’s treatment expenses as the reasons for failing to service his loan. He also claims that in one of the Tribunals sessions, he tried logging in but was unceremoniously logged out and his efforts to rejoin was futile and as such was condemned unheard.We have considered the pleadings and the Submissions and the only question remaining for determination is as to whether this Tribunal should grant the orders sought by the Respondent:i.To grant leave for the Respondent to liquidate the decretal sum in instalments and to set aside the warrants of attachment and sale issued to the Auctioneers.Granting of leave for decretal sum to be paid in instalments and setting aside of warrants of attachment.It is important to note that granting of leave and or setting aside of a warrant is a discretionary exercise that should not be denied if there is a good cause, but should also be exercised in a manner that seems just, fair, right and equitable to all parties involved.Order 21 Rule 12 of the Civil Procedure Rules provide that;1. Where and in so far as a decree is for the payment of money the court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall postponed or shall be paid in instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable.2. After passing of any such decree, the court may on the Application of the Judgment- Debtor and with the consent of the Decree -Holder or without the consent of the Decree- Holder for sufficient cause shown, order that the payment of the amount decreed be postponed or be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgement debtor or the taking of security from him, or otherwise, as it thinks fit.In as much as Order 21 Rule 12 gives this Tribunal discretion, it still mandated it to look at whether sufficient cause has been shown. When considering sufficient cause, courts have to consider the following: The circumstances of the case.

The conduct of the parties.

The willingness and bona fides of the Applicant to pay a fair proportion of the debt,

That the Application was made without undue delay.

In Singh Gitau Advocates v City Finance Bank Limited [2013]eKLR, Mabeta J had this to say in relation to sufficient cause.“it is trite law that apart from looking at the peculiar circumstances of the case, the court when considering what sufficient cause amounts to, must consider a number of factors. This includes how the debt was incurred, the bona fides of the Judgement Debtor, the financial position of the debtor, the financial position of the debtor and the judgement creditor, the conduct of the parties and the hardship that may result from enforcing the Decree.”

3. In relation to this particular case, we have considered a number of things. First, that the Respondent is not disputing owing the Claimant and neither is he disputing the figures (the decretal amount). He has admitted being in debt and has done several letters offering several proposals of how much to pay. Whether he has kept his word in another thing all together.Second, we have considered the year the loan was taken 2018 and the year it should have been paid in full 2023. Whether it is in the interest of Justice, equity and public policy to allow the Respondent to pay Kshs. 10,000/= monthly installment and make the Claimant wait for more than another ten (10) year to be paid what he is rightfully and legally owed.In as much as this Tribunal feels for the Respondent and all the misfortunes he has had to go through or comfort through the years, to make the Claimant wait for ton of more years will not be equitable or be in the interest of justice and as such hereby exercise our discretion as follow:i.We grant the Judgement Debtor leave to pay the decretal sum of Kshs.1,327,137/=in instalments of Kshs. 50,000/= to be paid on or before the 10th of every month with the first payment made before the 10th of April, 2024 and on the 10th of every subsequent month.ii.The Warrants of Attachment and Sale issued to the Auctioneers are hereby lifted in default of payment of any one instalment, execution will be issued.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024Hon. Beatrice Sawe Member Signed 7. 3. 2024Hon. Fridah Lotuiya Member signed 7. 3.2024Hon. Philip Gichuki Member Signed 7. 3.2024Hon. Michael Chesikaw Member Signed 7. 3.2024Hon. Paul Aol Member Signed 7. 3.2024Tribunal Clerk JemimahMiss Njoroge advocate holding brief for Mrs. Omollo for Claimant.Oyondi advocate for Respondent/Applicant.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024