[2023] KECPT 1031 (KLR)

Wangila v Ken Kaz Sacco Limited (Tribunal Case 42/ E029 of 2022) [2023] KECPT 1031 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1031 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 42/ E029 of 2022

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

November 30, 2023

Between

Josphat Nyongesa Wangila

Claimant

and

Ken Kaz Sacco Limited

Respondent

Judgment

1. The matter for determination was brought vide a Statement of Claim dated 31st January 2022 and filed on the same date. The Claimant avers to be a member of the Respondent and that on 3rd August 2015, he visited the Respondent’s Offices in Coffee House, Haile Selassie with a withdrawal letter which the Respondent duly received.The Claimant avers that he has visited the Respondent’s office on several occasions demanding for repayment of his deposits but to no avail.

2. The Claimant therefore prays for judgement against the Respondent for:a.The said sum of Kshs. 77,631. 80/=b.Costs of this suit and interest until payment in full.c.Any other relief so deemed appropriate by this Honorable Tribunal.The claim was accompanied by a Verifying Affidavit and Witness Statement sworn by Josphat Nyongesa Wangila filed on 31st January 2022. It’s also accompanied by the List of Witnesses and List of Documents. The List of Documents has;a.Withdrawal letter.b.Statement of Account

3. In response to the claim, the Respondent filed a Statement of Admission dated 18th February, 2022 filed on 29th March 2022. The Respondent admits to the claim however, avers that they owe the Claimant Kshs. 54,080. 00/= and wishes to pay the same in equal monthly installments of Kshs. 10,000/= on or before 30th of each succeeding month till payment in full.The Respondent denies being served with a Demand Notice or Intention to sue and claims that if it had received them it should be as per the Society by-laws by serving a notice to withdraw upon the Respondent.

4. Further, the Respondent avers that the claim against it is res judicata, is a non-starter and is hopelessly defective and should be dismissed with costs.

Parties were asked by the Tribunal to file their Statement of Account but at the time of writing this Judgement they have failed to do so. Issues 5. Issues:-a.Whether the claim is res judicata?b.Whether the Claimant is entitled to a refund?

Analysis Issue One Whether the claim is res judicata? 6. The doctrine of res judicata is set out in the Section 7 of the Civil Procedure Act which states that “ no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

7. In essence therefore, the doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. In this case, the claim is for refund of money. From the Statement of Claim, it is clear that there are no pending proceedings neither have there been any previous proceedings between the parties over the same subject matter.

8. Other than just alleging, the Respondent have offered no proof of there being any other case between the Claimant and themselves over the same subject matte and as such the same does not hold water.

9. Therefore, the claim is not res judicata as alleged by the Respondent.

Issue Two b. Whether the Claimant is entitled to a refund? 10. In the proceedings as well as in the Respondents’ Statement of Admission, the Respondent has admitted to owing the Claimant Kshs. 54,080. 00/= and wishes to pay the said amount in equal monthly installments of Kshs. 10,000/= on or before 30th of each succeeding month till payment in full.

11. Judgement on admission is provided under Order 36 Rule 1 of the Civil Procedure Rules, 2010 that states that in all suits where the Plaintiff seeks judgement for a liquidated demand with or without interest may apply for the amount claimed and interest. In addition, Order 13 Rule 2 of the Civil Procedure Rule, 2010 provides that any part where admission of facts has been made, plaintiff shall apply to the court for such judgement or order as upon such admissions as he may be entitled.

12. Similarly, in Choitram V Nazari the Court of Appeal stated that admission should be clear and unequivocal. The admission must leave no room for doubt. In this case, the Respondent has clearly admitted to owing Kshs. 54,080. 00/=.

Upshot 13. Judgement by admission is entered in favour of the Claimant against the Respondent for Kshs. 54,080. 00/= plus cost and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023