Dimkes DT Sacco v Muriithi (Tribunal Case 990/E1049 of 2022) [2023] KECPT 915 (KLR) (26 October 2023) (Judgment)
Neutral citation:
[2023] KECPT 915 (KLR)
Republic of Kenya
Tribunal Case 990/E1049 of 2022
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 26, 2023
Between
Dimkes DT Sacco
Claimant
and
Kelvin Waweru Muriithi
Respondent
Judgment
1.The Claim is vide a Statement of Claim dated 19/12/2022 and filed on 18/01/2023. It is accompanied by a Verifying Affidavit dated 05/12/2022 and filed on 18/01/2023, a Witness Statement filed on 18/01/2023 and dated 19/12/2022. The Claimant also filed a List of Documents dated 19/12/2022 and filed on 18/01/2023.
2.The Claimant made an Application for request of Judgement dated 20/2/2023. Summary Judgement was consequently entered in favor of Claimant against the Respondent for Kshs. 568,893.68/=.
3.The Claimant was directed to file Submissions on prayers b, c, e and f. the Claimant filed their submissions dated 13/04/2023 and filed on 19/04/2023. Prayers b, c, e, and f are s follows:b)Default interest accrued amounting to Kshs. 656,807.45.c)Default penalty amounting to Kshs. 30,332.05.d)Collection charges as at the rate of 10%.e)General damages for breach of contract.
Analysis And Determination.
4.After perusing through the Written Submissions file, we will consider one issue:Whether the prayers (b), (c), (e), and (f) as stated in the Statement of Claim have merit.
5.It is a long held principle, that the person who alleges must prove. The courts together with the Evidence Act expect that a Claimant ought to prove all the allegations put forward on a balance of probability. This is the position even if the case is to be heard on Formal Proof as held in Peter Kariithi Kimunya v Aden Guyo Haro [2014] eKLR. Further in Douglas Odhiambo Apel and another & Another v Telkom Kenya Limited CA No. 115 of 2006, the court held that it is the duty if the claiming party to produce evidence to prove special damages claimed.
6.Looking at the first prayer, the Claimant proffered a Loan Application that sets out the interest at 16% per annum. Further, the Loan Application was signed by the Respondent indicating his willingness to be bound by the terms and conditions of the Loan Agreement. He was therefore required to pay the 16% interest that was charged. The Claimant is therefore entitled to the lost interest accrued on the outstanding loan balance.
7.On the prayers for default penalty accrued on the outstanding loan balance amounting to Kshs. 30,332.05/= and collection charges at the rate of 10% looking at the loan application and Loan Agreement dated 7/08/2015 no terms nor conditions expressly indicate the charging of such. It is therefore not in the place of the Tribunal to rewrite the Loan Agreement between the Claimant and the Respondent. Consequently, the Claimant is not entitled to default penalty nor the collection charges.
8.On the prayer for general damages for breach of contract, it is true and undisputed that the Respondent failing to uphold her contractual obligations of the Loan Agreement did indeed breach the contract. The Claimant, has brought out the financial loss incurred. The injury suffered by the Claimant has been broken down and pleaded accordingly. It is therefore the Tribunal’s position that general damages will not suffice.
9.The Tribunal therefore finds that the Respondent is therefore only entitled to prayer b as stated in the Statement of Claim and order as follows.Judgment is entered against the Respondent for default interest accrued on Kshs.568,893.68/= amounting to Kshs.656,807.45/=.Judgment is entered in favor of the Claimant against Respondent for Kshs. 656,807.45 plus costs and interest.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023.HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER