Case ID:182228

Gakuo Ng’ang’a v Metropolitan Savings & Credit

Society Ltd [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 316 of 2020

Parties:

Gakuo Ng’ang’a v Metropolitan Savings & Credit Society Ltd

Date Delivered:

02 Sep 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

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

Citation:

Gakuo Ng’ang’a v Metropolitan Savings & Credit

Society Ltd [2021] eKLR

Court Division:

Tribunal

County:

Nairobi

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. 316 OF 2020

GAKUO NG’ANG’A.................................................CLAIMANT

VERSUS

METROPOLITAN SAVINGS & CREDIT

SOCIETY LTD....................................................RESPONDENT

RULING

1. This Claim was instituted by way of a Statement of Claim filed on

24

th

September 2020.

Summons were issued and the same were extracted and served upon the Respondent on

6

th

November 2020

. Subsequently, the Respondent filed a Statement of Defence dated

2

nd

December

2020

and denied liability. The Claimant proceeded to file a Reply to Defence on

10

th

December 2020.

While this was ongoing the Respondent on

26

th

November 2020

made a payment of

Kshs. 520,891/=

to the Claimant. This was clearly after the Claim had been filed, and Summons to Enter Appearance served upon the Respondents, who were by this time aware of the filed suit.

2. It is also noteworthy that the Claimant did write a Demand Letter dated

5

th

November 2019,

whose effect was to attempt to make the Respondent pay the amounts due before a suit is filed. On record also are letters requesting for a refund of the Claimant’s share contribution from the Respondent, and a forwarding letter of the Claimant’s retirement. The letters are dated

4

th

March 2019

and

11

th

March 2019

respectively.

3.

ISSUES FOR DETERMINATION

We have considered the Pleadings filed and the robust written submissions of the parties, which were well argued. This Tribunal has framed the following issue as necessary for determination;

(a)

Whether the Claimant is entitled to costs of the suit.

We thus proceed to rule as follows:

WHETHER THE CLAIMANT IS ENTITLED TO COSTS

From the record, the Claimant issued a letter dated

4

th

March 2019

requesting for a refund of the Claimant’s share contribution from the Respondent. The Respondent did not act on it, necessitating the Claimant to write a Demand letter dated

5

th

November 2019,

which the Respondent again failed and/or refused to act on. Subsequently, a suit was filed on

24

th

September 2020,

almost a year after the Demand letter was issued.

4. On realizing that a Claim had been filed, the Respondent, in lightning speed, disbursed payments of the to the Claimant. The Claimant has requested for costs, since if the Respondent had paid the Claimant as initially requested, there would be no need to file a suit and incur expenses, a position that this Tribunal agrees with. The Claimant’s case would have been successful, and the Respondent decided to pull the rag off the Claimant’s Claim. In that case, costs would have followed the event, in line with

Section 27(1) of the Civil Procedure Act.

While this Tribunal encourages parties to settle claims out of court, this ought to be done without malice, and timeously. The Respondent’s actions smack of bad faith, having dillydallied with the refunds due to the Claimant and only prodded into action by the instant Claim. Whoever approaches equity must do so with clean hands, and the Respondent’s soiled hands are easily identifiable.

Section 27(1) of the Civil Procedure Act

bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimant is entitled thereto, and we thus so order.

The Claimant is directed to file a Bill of Costs within 30 days hereof.

Mention to take further directions on 9.11.2021. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2

ND

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

Mr Ngethe Advocate holding brief for Mr Wainana for Claimant: Present

Hon. B. Kimemia Chairperson Signed 2.9.2021