Case ID:181917

Jackson Kiogora Gitonga v Centenary Sacco Limited [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 583B of 2017

Parties:

Jackson Kiogora Gitonga v Centenary Sacco Limited

Date Delivered:

02 Sep 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Judgment

Judge(s):

Hon. B. Kimemia - Chairperson, Hon. J. Mwatsama - Deputy Chairperson, Mr. Gitonga Kamiti - Member & Mr. B. Akusala - Member

Citation:

Jackson Kiogora Gitonga v Centenary Sacco Limited [2021] eKLR

Advocates:

Kiruai Advocate for Respondent

Court Division:

Tribunal

County:

Nairobi

Advocates:

Kiruai Advocate for Respondent

History Advocates:

One party or some parties represented

Case Outcome:

Claimant’s claim dismissed with costs

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO 583B OF 2017

JACKSON KIOGORA GITONGA........................................................CLAIMANT

VERSUS

CENTENARY SACCO LIMITED....................................................RESPONDENT

JUDGMENT

a) The matter for determination is a claim filed on

4/10/2017

seeking the following prayers. The Respondent filed a response on

18/3/2018.

b) The Matter came up for inter-parties hearing and

CW-1

Jackson kiogora,

CW-2

Magdelene Mwende

- testified and adopted their evidence-in-chief.

c) The Respondent witness -

Eric Mureithi

also testified and produced his witness statement and documents as exhibits.

d) The parties filed their written submission on

25/8/2021

and

2/6/2021

respectively.

Claimants case

The Claimant submitted that he was a member of the Respondent Member number

8073.

That he obtained a loan facility from the respondent of

Kshs. 80,000/-

in September 2015 which was to be repaid within a period of 18 months till

30.03.2017.

That as at

16.09.2016

he had repaid an amount exceeding

Kshs.60,000/-

having a balance if

Kshs. 20,830.51

. That the Respondents employee

Eric Mureithi

went to his home in the absence of himself and his wife and carried away household prior notice and did not provide an inventory for the same of the estimated value.

That this remitted an embarrassment and loss to the claimant.

Respondents case

The Respondent submitted that indeed the Claimant had obtained the facility that he borrowed through a micro-finance group and it was guaranteed by members of the Igoji Fellowship group to which the Claimant was a member.

That the member of the micro-finance group co-guarantee each other and ensure that members meet their financial obligations and in default , they jointly and severally were to recover the pledged items independently and pay the loan of the defaulting member.

That the claimant had defaulters in payment of the loan and owed a sum of

Kshs. 51,968/-

when the members of Igoji fellowship group moved to recover the goods of claimant without involving the Respondent .

Issues

i. On Default , did the Respondent proclaim and sell the goods of the claimant?

ii. What remedies are available to the claimant?

iii. Costs

Issue 1-

On Default , did the Respondent proclaim and sell the goods of the claimant?

We have perused the loan application form dated

09.09.2015

and note that indeed the claimant obtained and loan which was guaranteed by Igoji Fellowship group where members were –

Jackson Kiogora-Chairman, George Muturi-Treasurer and Gregory Okanya – Secretary

. These officials signed the guarantee on

09.09.2015

and the same was witnessed by

Magdalene Mwende,

wife of the Claimant.

On

27.08.2016

the Respondent sent a default notice to the

CW-2

wife of the claimant for Kshs. 16,620/-, for default of

Kshs. 8,620/-,

interest

Kshs.8,000/-

And penalty of

Kshs.

3,000/-.

On

09.09.2016

the Respondent sent a default notice of

Kshs. 51,568/-

for default of

Kshs. 40,568/-

entered

Kshs.5,000/-

to the Claimant. The two notices were copied to the guarantors.

On

17.09.2016,

Igoji fellowship members wrote to the Respondent informing them that they had attached the goods of the Claimant on

16.09.2016

with a view to settle / offset the loan arrear and fines.

They also indicated that the claimant owed the group

Kshs. 13,450/-

for the said attachment.

On

20.09.2016,

the Igoji fellowship group wrote again to the Respondent informing them that , after the auction they had realized

Kshs. 49,160/-.

The Claimant had reported the matter to the police and the Respondent’s

RW-1

was never arrested or charged for the same.

The

RW-1

clearly indicated and confirmed though the said documents that indeed it was the Igoji fellowship group, being the guarantors, who had proclaimed, attached and sold the claimant’s goods in order to offset the defaulted loan amount. The

RW-1

confirmed that the said group called him to witness the said attachment and that he was a mere observer since he did not participate in the same.

The

RW-1

confirmed that the group paid the defaulters amount after the auction.

The Claimant admitted in the repayment any evidence that he indeed cleared the loan.

The evidence on record clearly indicates that the Igoji fellowship group which had guaranteed the Claimant’s loan proclaimed, attached and auctioned the goods of the claimant and then they paid to the Respondent the defaulted amount and this offset the said loans.

We therefore find that the Respondent cannot be blamed for the actions of the guarantors in this case since when the guarantors took actions, the did so include their obligation as guarantors of the Claimant and not as the agents of the Respondents.

Issue 2- What remedies are available to the Claimant?

Having found that the Respondents were not responsible for the proclamation , the attachment and sale of the Claimant’s goods, we find that the Claimant was the author of his own misfortune and therefore he cannot be seen to blame the Respondents for his own irresponsible behavior.

We therefore find that the Claimant’s claim fails as it has not been proved on a balance of probabilities.

We therefore order as follows:-

1. The Claimant’s claim is hereby dismissed with costs.

JUDGMENT READ AND DELIVERED VIRTUALLY 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

Kiruai Advocate for Respondent

No appearance for Claimant

Hon. B. Kimemia Chairperson Signed 2.9.2021