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Malenya v Invest and Grow Sacco Limited (Tribunal Case E238/414 of 2021) [2023] KECPT 391 (KLR) (Civ) (27 April 2023) (Ruling)
Neutral citation:
[2023] KECPT 391 (KLR)
Republic of Kenya
Tribunal Case E238/414 of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, Beatrice Sawe, Fridah Lotuiya, P. Gichuki, Michael Chesikaw & Paul Otieno Aol, Members
April 27, 2023
Between
Abraham Malenya
Claimant
and
Invest and Grow Sacco Limited
Respondent
Ruling
1.The claimant filed a notice of motion dated October 5, 2021. The orders sought are:a.That this application be certified urgent, service be dispensed with and heard exparte in the 1st instance.b.That pending the interparties hearing and determination of this application, a temporary order do issue allowing the respondent to deduct only a third 1/3 of the claimant’s net salary as opposed to the entire /net salary from his employer.c.That pending the hearing and determination of this application, the respondent be compelled to furnish the claimant/applicant with the loan statement within seven days (7) as the honourable shall direct and the same be filed in this honourable court.d.Costs be provided for.
2.Considering the supporting affidavit of the claimant and copies of his pay slip which have been annexed to support the application, the court on October 7, 2021 issued interim orders and ordered that pending the inter-parties hearing and determination of the application, only a third (1/3) of the claimant net salary as opposed to his entire net salary was to be deducted with the application dated 5th October 2021 being served upon the respondent’s, and the respondent’s serving a response within 14 days.
3.It is important to note that a number of developments have since occurred following the issuance of the orders on October 7, 2021 necessitating this court to make further orders.These developments include the respondent filing a statement of defence upon service, in which he avers among other things that the claimant committed his salary to other loans after taking the progressive loan from the respondent, actions which are fraudulent and meant to deny the respondent a chance to recover the loan.
4.Also filed is respondent’s witness statement and replying affidavit by Churchill Sagalla who is the accounts assistant for the respondent’s, with annextures of the account statement of the claimant’s answering the questions of the total interest, the total repayments and the loan balance.
5.Application dated October 5, 2021 is allowed:a.That pending the interparties hearing and determination of this application, a temporary order is hereby issued allowing the respondent to deduct only a third 1/3 of the claimant’s net salary as opposed to the entire /net salary from his employer.b.That pending the hearing and determination of this application, the respondent is compelled to furnish the claimant/applicant with the loan statement within seven days (7) as the honourable shall direct and the same be filed in this honourable court.c.The matter to proceed for full hearing with the pre-trial date set for July 11, 2023.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023.Hon. Beatrice Kimemia Chairperson Signed 27.4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27.4.2023Hon. Beatrice Sawe Member Signed 27.4.2023Hon. Fridah Lotuiya Member Signed 27.4.2023Hon. Philip Gichuki Member Signed 27.4.2023Hon. Michael Chesikaw Member Signed 27.4.2023Hon. Paul Aol Member Signed 27.4.2023Tribunal Clerk Jemimah/JonahNo appearance by parties.Ruling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27.4.2023
