Please Wait. Searching ...
Kihoro v Gitogo (Tribunal Case 520 of 2021) [2023] KECPT 72 (KLR) (28 February 2023) (Judgment)
Neutral citation:
[2023] KECPT 72 (KLR)
Republic of Kenya
Tribunal Case 520 of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair & M. Mbeneka, Member
February 28, 2023
Between
David Wainaina Kihoro
Claimant
and
John Kihunyu Gitogo
Respondent
Judgment
1.Matter for determination is Statement of Claim dated February 2, 2021 and Claimant avers, he and Respondent are members of Farmnut Savings and Credit Co-operative Society Ltd.The Respondent in June 2020 applied for a loan of kshs 3.800,000/=. Claimant was a guarantor together with the others.Claimant guaranteed Respondent upto Kshs 1,184,580/=. Vide a letter 28/1/21 the Co-operative copied to the guarantors that the Respondent had defaulted for 5 months.The Claimant contacted the Respondent asking him to honour his loan obligations with the Society. On 16/4/21 the Claimant received another letter that the Respondent was still in default and as a result the Claimant lost his savings of Kshs 781,994/=.The Claimant prayed for;a.Special damages of Kshs 781,994/= only recovered from the Claimant by the Co-operative Society to offset the Respondent’s loan.b.Interests at court rates on Kshs 781,994/= only from the April 17, 2021 until payment in full of the principal amount.c.General Damages.d.Costs of this suit.e.Any other relief that this Honourable Court may deem fit and just to grant.He filed his list of Witnesses and List of Documents dated…
2.The Respondent filed a Statement of Responded dated 15/7/21 to which was filed 24/1/22.His Defence was full of denials and even challenged jurisdiction of the Tribunal.The case proceeded for hearing on 5/8/22 with Claimant Witness 1 – David Wainaina adopting his Witness Statement filed on 18/11/21 as his evidence- in -chief. He produced his List of Documents dated 2/5/21.Claimant Witness 2 – Kenneth Mulwa who is a Representative of Farmnut Sacco also adopted his Witness Statement as evidence in chief.In support of Claimants Claim.The Respondents were not present to defend their Claim and their case marked as closed.The Claimant filed their Written Submissions dated … on 7/9/22 and Respondent filed their Written Submissions dated 10/9/22 on 14/9/22.
3.Having considered the pleadings, Evidence adduced and Written Submissions by both parties, the issue for determination is whether the Claimant is entitled for his refund from Respondent?It is not a doubt in doubt the Respondent took a loan and Claimant was one of his guarantors.It is not in doubt the Respondent defaulted and as a result the Claimant’s shares were used to pay for the Respondents defaulted.The Respondent has not stated why he defaulted and as such left the burden to the Claimant to fulfil his obligations.
4.It is important to note the Respondent had a duty to pay the loan facility and not be negligent about it at the expense of the Claimant.Being a guarantor does not mean one is to assume the responsibility of the principal but just to ensure that the loan facility is serviced.The case of HCC No 573 of 2011 Talewa Road Contractors Ltd and Another –vs- Jaim Bosa Charitable Trust Regustered Trustees and Another the Claimant noted that;
5.To this end the Respondent shall not let others bear his burden and as such we find in favour of Claimant against Respondent for;a.Kshs 781,994 plus Costs and Interest in the suit.b.Prayer for General Damages fails
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF FEBRUARY, 2023.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28.2.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 28.2.2023M. MBENEKA MEMBER SIGNED 28.2.2023TRIBUNAL CLERK J. MUTAIHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 28.2.2023
