Kenya Union of Savings & Credit Co-Operative Society [Kusco] v Kencom Co-Operatives Savings & Credit Society Ltd & another [2021] KECPT 239 (KLR)

Kenya Union of Savings & Credit Co-Operative Society [Kusco] v Kencom Co-Operatives Savings & Credit Society Ltd & another [2021] KECPT 239 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 157 OF 2020

KENYA UNION OF SAVINGS& CREDIT                                         

CO-OPERATIVE SOCIETY [KUSCO]........................CLAIMANT

-VERSUS-

KENCOM CO-OPERATIVES SAVINGS &                                      

CREDIT SOCIETY LTD...................................1ST RESPONDENT

KCB BANK KENYA LIMITED.......................2ND RESPONDENT

( Suit withdrawn on 24.3.2021)

RULING

1.  This Claim was instituted by way of a Statement of Claim filed on 29th May 2020. The Claimant subsequently filed an Application dated 19th November 2020, seeking for Orders, inter alia,

a. That Judgment on admission be entered for the Claimant against the Respondent as prayed in the Plaint.

b. That the 1st Respondent be ordered to pay Kshs. 183,000,000/= admitted, plus interest.

2.  In the grounds on the face of the Application, the Claimant indicates that the 1st Respondent has made an admission of liability of Kshs. 246,829,584/=. The Claimant has also posited that the 1st Respondent’s defence is a sham and consists of mere denials, and the said Defence does not raise any triable issues, for which reason it should be struck out.

3.  A cursory look of the Statement of Claim discloses that the Claimant has prayed for, inter alia, judgment for Kshs. 246,829,584/=. There is no explanation as to why the amount prayed for in the Application is Kshs. 183,000,000/=, while the amount in the Claim is Kshs. 246,829,584/=. Paragraph 5 of the Claimant’s Application dated 19th November 2020, however, explains that the 1st Respondent took a combined loan of Kshs. 183,000,000/= from the Claimant, but defaulted on the repayments.

4.  From the foregoing, the Pleadings are not clear, and this Tribunal is incapable of making a judgment on such glaring and gross inconsistencies. The Tribunal will be looking over its shoulders, wondering if it has made a mistake. We agree with the Respondents that there has been no attempt by the Claimant to explain whether the rest of the monies shall be subject to further litigation, or the Kshs. 183,000,000/= shall constitute the final and full settlement of the Claim. The Claimant has not disclosed why the Claimant has discarded the original Claim of Kshs. 246,829,584/= and is instead praying for a Judgment of Kshs. 183,000,000/=  on the grounds of admission and a sham defence.

5.  This Tribunal holds that pleadings must clearly state a party’s case, as was decided in the case of Mbofoma Company Limited -vs- Nyansiongo Tea Factory Limited [2020] eKLR. It is the duty of each party to ensure that their Pleadings disclose an unequivocal cause of action, and prayers are capable of being granted. The Claimant intends to invite this Tribunal to make a determination of the case on the basis of conjecture and guesswork, which should not be the case.

6.  In any event, the prayer to strike out the Defence is a discretionary one, which this Tribunal hereby chooses to decline. In the case of Nguruman Limited –vs – Shompole Group Ranch & Others, Civil Appeal Number 73 of 204 [2007] 2EA 353 the Court of Appeal stated that the power to strike out pleadings is a discretionary one and it is to be exercised with the greatest care and caution. In this present case, the Tribunal is interested in finding justice by hearing both parties.

7.  In the interest of justice, we find that the Orders sought should not be granted until the Tribunal is apprised of each detail of the case, bearing all the evidence in the mind of the Tribunal.  In our considered view, the issues raised in this Application can best be addressed in a full hearing where all parties will be at liberty to ventilate their case on merit.

ORDERS

8.  We therefore Order as follows:

a. The Claimant’s Application dated 19th November 2020 is

dismissed with costs in the cause.

b. The matter to proceed to full hearing. Parties to file and exchange witness statements and documents within 30 days hereof.

c. Mention to confirm compliance and fixing hearing date on 9.11.2021.

Ruling signed, dated and delivered virtually at Nairobi this 2nd    day of September, 2021.

Hon. B. Kimemia                  Chairperson                Signed       2.9.2021

Hon. J. Mwatsama              Deputy Chairperson  Signed       2.9.2021

Mr. Gitonga Kamiti              Member                       Signed       2.9.2021

Mr. B. Akusala                      Member                       Signed       2.9.2021

Tribunal Clerk                       R. Leweri

Miss Ochieng  holding brief  for Owaga  for Claimant: Present

Otenyo  Advocate  for Respondent : Present

Hon. B. Kimemia                  Chairperson                Signed       2.9.2021
 

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