Kemuna Sacco Limited v Chege (Tribunal Case 847/E931 of 2022) [2024] KECPT 1695 (KLR) (31 October 2024) (Ruling)
Neutral citation:
[2024] KECPT 1695 (KLR)
Republic of Kenya
Tribunal Case 847/E931 of 2022
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
October 31, 2024
Between
Kemuna Sacco Limited
Claimant
and
Michael Gacheru Chege
Respondent
(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)
Ruling
1.The matter for determination is a Notice of Motion dated 26th June, 2023 and sought for the following orders:i.Spent.ii.That pending the hearing and determination of this Application, an order of Permanent do issue restraining the Plaintiff, its agents and/or servants from selling, interfering with motor vehicle Registration No. KCK 148 G Nissan Matatu belonging to the Applicant pending hearing and determination of this Application.iii.That pending the hearing and determination of this Application, an order of Permanent Injunction do issue restraining the Plaintiff, its agents and/or servants from selling, interfering with Motor Vehicle Registration No. KCK 148 G Nissan Matatu belonging to the Applicant pending hearing and determination of this Application.
2.On 4th July, 2023, the Tribunal considered the Respondent’s Application dated 26th June, 2023 and gave directions which included order No. 5 and state:
3.In order to make an informed determination of the Respondent’s Notice of Motion Application dated 26th June, 2024; Parties were directed to file Written Submissions, which they did.
4.Having read and examined the evidence on record for the Claimant and the Respondent, two (2) issues stand out for determination.a.Whether a Permanent Injunction can be issued to restrain the Claimant from selling the Motor Vehicle Registration No. KCK 148G together with the proclaimed household goods.b.Who should bear the cost.
5.In the instant Claim, Summary Judgement had been entered against the Respondent for repayment of Kshs. 1,518,423/= plus costs and interest thereby satisfying the provisions of Section 75 of the Cooperative Society’sAct no. 12 of 1997 {} which provide as follows:
6.In addition, Order 10 Rule 4 of the Civil Procedure Rules 2010, speaks to a Claim for liquidated Sum of Money due from a Respondent and when the Respondent appear, the Tribunal shall enter judgement. Specifically the Provision state under order 10 Rule 4 that:The Tribunal therefore exercised its mandate and entered Judgement when the Respondent failed to appear and defend the Suit noting that he was served in presence of his Secretary Manager who knew him.
Analysis.
Issue 1. Whether a Permanent Injunction can be issued to restrain the Claimant from selling the Motor Vehicle Registration No. KCK 148G together with the proclaimed house hold goods.
7.The totality of the Respondent’s Notice of Motion Application is seeking for Temporary and Permanent Injunction for the sale of the Motor Vehicle Registration No. KCK 148G, without stating how he will pay the sum of Kshs. 1,518,432/= plus interest and costs.Notwithstanding the foregoing, the Tribunal issued a Temporary Injunction on 4th July, 2023 with an assumption that the Respondent would reach out to the Claimant and agree on a repayment plan.
8.Given that the Respondents have not shown any objection to the sum that has been entered in the Summary Judgement, neither did he file any Defence; we would not tamper with our Judgement in order to open a window for filing a Defence by the Respondent.We are not persuaded to allow a Permanent Injunction in the Application in the absence of an agreed repayment plan.
9.Under Paragraph 5 of the Supporting Affidavit dated 26/6/2023, the Respondent state that he has been paying the Loan in question. A quick look at his Statement of Repayment which formed part of his list of documents shows very minimal and sporadic payments which does not add up to a monthly payment of Kshs. 45,300/= as shown in the Loan Application from under the “For official use only” clause.
10.To worsen the situation, the Respondent out of his own volution stopped further repayment of the loan after paying Kshs. 15,925/= on 2/6/2023. This kind of lethargy creates doubt in our minds whether the Respondent is serious in repaying the Loan. On this note, we decline to issue a Permanent Injunction but rather extend the temporary injunction for 30 days from the date of this ruling pending the repayment of the decretal sum in full. In the event that the Respondent does not repay the decretal sum within 30 days, then the Claimant shall be at liberty to auction the proclaimed Motor Vehicle and the goods.
Issue 2.Who should bear the cost?
11It is trite law that costs follow the event. In the instant case, we find that there is no merit to allow the Application as filed. Therefore, we award costs to the Claimant.
12The upshot of the foregoing on the Respondents Notice of Motion application dated 26.6.2023 is dismissed with costs.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024.HON. B. KIMEMIA CHAIRPERSON SIGNED 31.10.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31.10.2024HON. BEATRICE SAWE MEMBER SIGNED 31.10.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 31.10.2024HON. PHILIP GICHUKI MEMBER SIGNED 31.10.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 31.10.2024HON. PAUL AOL MEMBER SIGNED 31.10.2024Tribunal Clerk JemimahKimani for ClaimantNo appearance for RespondentHON. B. KIMEMIA CHAIRPERSON SIGNED 31.10.2024