United Amani Savings and Credit Co-operative Society v Samwel Mwendo Mutua

**** **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI** **TRIBUNAL CASE NO. E070 OF 2023** **(Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. P. Aol- Member, Hon. M. Chesikaw-Member)** **UNITED AMANI SAVINGS AND CREDIT CO-OPERATIVE** **SOCIETY …….……….………………………………………….…CLAIMANT** **VERSUS** **SAMWEL MWENDO MUTUA …………………..……………. RESPONDENT** **RULING OF THE TRIBUNAL** 1. The matter for determination is Notice of Motion dated 13th July 2026 where the Applicant seeks the following orders: **Ex-parte** 1. **Spent** 2. **Leave be granted to the firm of NCLA ADVOCATES LLP to come on record for the Respondent/Applicant.** 3. **Pending the hearing and determination of this Application, this Honorable Tribunal be pleased to stay and or set aside the Warrants of Attachment dated 6th July 2026 issued by this Honourable tribunal and the consequent Proclamation of Attachment/Repossession of moveable property dated 8th July 2026 issued by Premium Auctioneers.** 4. **Pending the hearing and determination of this application, this Honourable Tribunal be pleased to issue an order of Stay of Execution of the Claimant/Respondent, Premium Auctioneers, their agents, servants, employees or any other person acting on their instructions, from advertising, proclaiming, removing, attaching, or selling by public auction or by private treaty or howsoever otherwise, the Respondent's motor vehicle registration number KCL 866Y and/or any other property attached and proclaimed under the Warrant of Attachment dated 6th July 2026.** **Inter parte** 1. **This Honourable Tribunal be pleased to determine and declare, pursuant to Section 34 of the Civil Procedure Act, that execution of the Consent recorded on 11th February 2025 by way of warrant of attachment and sale of the Respondent's movable property is not sanctioned by, and is contrary to, the express terms of the said Consent, the sole remedy available to the Claimant upon default being accrual of interest at court rates after the lapse of the two-year repayment period ending 11th February 2027.** 2. **Pending the hearing and final determination of the substantive dispute between the parties as to the proper mode of execution of the Consent, this Honourable Tribunal be pleased to stay any further execution proceedings, including any further warrants of attachment, against the Respondent's property.** 3. **This Honourable Tribunal be pleased to set aside the Warrant of Attachment dated 6th July 2026 and Proclamation Notice dated 8th July 2026.** 4. **The costs of this application be borne by the Claimant/Respondent.** 5. The Notice of Motion is supported by the Affidavit of Samwel Mwendo Mutua sworn on 13th July, 2025 where the Respondent/Applicant states that on 11th February 2025 the Tribunal recorded a Consent between Claimant and Respondent for a sum of Kshs. 900,000.00 all inclusive of costs. He avers he was to settle decretal sum of Kshs. 34,200.00 over a period of two years beginning 11th February 2025 and in default interest was to accrue at court rates after the two-year lapse. 1. Applicant states he has been a making payment and as at date of Warrant of Attachment the sum of Kshs. 285,500.00 was paid on account leaving balance of Kshs. 642,375.00 as per the warrant. The consent did not provide for mode of execution and the default clause comes in effect on 11th February 2027. A Warrant of Attachment dated 6th July 2026 was issued by the Tribunal to sell my property to recover the balance. Respondent/Applicant avers his motor vehicle registration number KCC 866Y was proclaimed with other household foods. The Warrant of Attachment are irregular and ought to be set aside in the interest of justice and fairness. 1. Claimant/Respondent filed Replying Affidavit sworn by Moses Njuguna on 21st July 2026 where he stated he was Claimant/Respondent’s chairman and confirms a consent adopted by Tribunal as judgment. He states Respondent has never complied with consent; he has never honoured the repayment schedule as agreed as his payments are irregular which informed the Claimant/Respondent’s actions. The Claimant/Respondent gave a breakdown of the amount paid to the Respondent/Applicant from 21st July 2025. 1. The Claimant/Respondent state in their response as at 11th June 2026 the Respondent/Applicant ought to have paid Kshs. 581,400.00 and had only paid Kshs. 258,500.00 leaving an arrears of Kshs. 322,900.00 with an outstanding decretal sum of Kshs. 641,500.00. The Consent did not bar the Claimant/Respondent from enforcing the decree and the issue of interest not accruing the Respondent/Applicant cannot be denied to take it as immunity from execution which he continuously violates the repayment obligation. Once the Tribunal adopted the consent the same became a judgment and decree of the court capable of enforcement of decrees. 1. Respondent/Application was aware of his obligation under the consent and he is capable of payment but has chosen to pay what is convenient for him. Applicant has not approached Tribunal in good faith and the Application ought to be dismissed. 2. Having looked into the Applicant’s Notice of Motion dated 13th July 2026 the response therein and consent dated 11th February 2025, the issue that is for determination is whether the execution by Claimant/Respondent is proper? We look into the law on variation and/or setting aside of consent judgment. Variation of a consent judgment can only be on grounds that would allow a contract to be vitiated. The grounds include fraud, collusion, illegality, mistake, ignorance of mentioned facts. Court of Appeal in the case of **Board of Trustees National Social Security Fund -vs- Michael Mwalo [2015] eKLR** states: “***The law pertaining to setting aside a consent judgments or consent orders has been clearly stated. A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, collusion or by an agreement contrary to the policy of the court”.*** 1. **SMN -vs- ZMS & 3 Others [2017] eKLR**; ***“There is no death of authorities or the law governing the setting aside of consent judgments or orders … Generally, a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties”.*** It is clear that a consent was entered between the parties and the issue at hand is paragraph (iv); ***“…. In the event of default, interest shall start accruing after the lapse of two years at the court’s rate”.*** The default clause does not speak to default as occurs other than on interest. Question to be asked would be; were the parties acting in good faith? 1. The Respondent/Applicant failure to settle the decretal sum is undisputed and the consent terms have not been complied with. We appreciate the consent dated 11th February 2025 and there is no legal or equitable basis why the Claimant/Respondent should not execute on a consent judgment that has been defaulted. The issue of interest has not been challenged as it is clear the same would only accrue after February 2027. It does not stop the Claimant/Respondent from execution as it were. 1. The Respondent/Applicant is in default of the consent order. What recourse does the Claimant/Respondent have? The consent dated 11th February 2025 was adopted by the Honourable Tribunal on 12th February 2025 and as such became a judgment order by the Tribunal. We shall thus treat the consent as judgment of the Tribunal. The Applicant seems to be cunning in the way he wants the consent to be handled *“…to have his cake and eat it…”* at the same time consent entered must be entered in good faith which from the Application, Supporting Affidavit and Replying Affidavit the Respondent/Applicant seems to be dodging making payment for whatever reasons. 1. A judgment being in place emanating from the consent dated 11th February 2025 what follows is a decree. The Claimant/Respondent is executing the amount not paid and no interest has been running as per the consent as rightly indicated in the consent. The Claimant/Respondent have followed the procedure as outlined in Order 22 Civil Procedure Rules for execution. It would be an exercise in futility by courts to allow consent judgment if the same would not be adhered to. The intention of Respondent/Applicant is to frustrate the process in its entirety to defeat the ends of justice. 1. Not to rewrite the consent by the parties however the Tribunal shall not stand by and turn a blind eye to the Respondent/Applicant’s actions which are to defeat the ends of justice. The Tribunal shall not be part of the mischief by the Respondent/Applicant. The consent dated 11th February 2025 was adopted by Tribunal on 12th February 2025 and will operate as such. The Claimant/Respondent has every right to execution as per the Civil Procedure Rules. **UPSHOT** 1. Notice of Motion dated 13th July 2026 is found to be without merit and is dismissed with costs to Claimant/Respondent. 2. Respondent/Applicant granted 14 days stay of execution from date of this ruling to pay the amount due which is **Kshs. 425,500.00** in default execution by Claimant/Respondent to proceed. Ruling signed, dated and delivered *virtually* at **Nairobi** this **10th** day of **September, 2026.** **Hon. J. Mwatsama Chairperson Signed** **10.9.2026** **Hon. Beatrice Sawe Member Signed 10.9.2026** **Hon. Fridah Lotuiya Member Signed 10.9.2026** **Hon. Paul Aol Member Signed 10.9.2026** **Hon. Michael Chesikaw Member Signed 10.9.2026** **Tribunal Clerk J. Mutai** Matoke H. Advocate for the Claimant/Decree Holder Samwel Mutua the Respondent – No appearance **Hon. J. Mwatsama Chairperson Signed 10.9.2026**