[2024] KECPT 915 (KLR)

Atieno v Metropolitan National Sacco Ltd (Tribunal Case 46/ E026 of 2023) [2024] KECPT 915 (KLR) (23 May 2024) (Ruling)

Neutral citation: [2024] KECPT 915 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 46/ E026 of 2023

J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

May 23, 2024

Between

Teresia Atieno

Claimant

and

Metropolitan National Sacco Ltd

Respondent

(Coram: 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

Ruling Of The Tribunal 1. Application for determination is Notice of Motion dated 4/5/2023 filed on 3. 10. 2023. the Notice of Motion seeks for orders:a.That the Honourable Tribunal be pleased to strike out the Respondent’s Defence dated 6th March, 2023. b.That upon and pursuant to the striking out of the Defence, the Honourable Tribunal be pleased to enter Judgement in favour of the Claimant in the sum of Kshs. 351,258. 71/= as sought in the claim dated 19th, January, 2023. c.That the Respondent be condemned to pay the costs of the Application and the claim.And supported by the Affidavit of Teresia Atieno sworn on 4/5/2023 and states. She was a member of the Respondent savings Co-operative Society Limited until July 2022.

2. She avers that her total contribution was Kshs. 351,258. 71/=. she withdrew her membership by giving the necessary notice. She further states she is not aware of any Annual General Meeting that resolved to stop any refunds to withstanding members for 2 years.

3. The Respondent filed a Replying Affidavit sworn by Brian Mulwa on 6th November, 2023. He is the Head of Business Development and service delivery of Metropolitan National Sacco Society Ltd who responded and stated that the Claimant’s Supporting Affidavit is full of falsehoods, mis presentation and concealment of material facts and thus Application is incompetent. Respondent avers that as per its 2019 Annual General Meeting resolutions, members resolved and agreed to schedule refunds on a 1st come 1st serve basis thus Claimant’s refund was put on hold until the liquidity challenges faced by the Respondent ceases.

4. The Respondent states it did not receive the Claimant’s Notice of Withdrawal as the same is not stamped as received. And further the Respondent’s 2022 Annual General Meeting resolutions were adopted by the General Assembly and passed by Sacco that further payments are to be made for a period of 2 years due to liquidity challenges to avoid collapse of the Sacco. He thus pays that the Application dated 4/5/2023 be dismissed.

5. The parties filed Written Submissions; the Claimant filed Written Submissions and the Respondent filed Written Submissions.

6. Striking out of Defence is provided under Order 2 Rule 15(1) Civil Procedure Rules which states;“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)it discloses no reasonable cause of action or Defence in law; or(b)it is scandalous, frivolous or vexatious; or(c)it may prejudice, embarrass or delay the fair trial of the action; or(d)it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”Court would ordinarily not be fast in striking out pleadings unless there are extraneous circumstances.The Claimant avers the Respondent has not offered any Defence if at all and as such the same ought to be struck out. We have considered the Statement of Defence filed by the Respondent and despite the Defence only making denials to the claim and state that there were resolutions passed in 2019 and 2022, the Claim is not denies.

7. The Claimant has rightly filed suit and awaits the determination of the same. The Respondent seeks for more time citing liquidity issues and that the General Assembly adopted its resolution for non-payment of 2 years to try and salvage the Respondent from liquidation. We are not bowed by the resolution of the Respondent’s General Assembly.

8. The Tribunal looks into the interest of both parties; Claimant and Respondent and must do what is best for both parties bearing in mind the position of the parties and the impact it has on both parties. As such in the interest of justice we disallow the Application dated 4. 5.2023. However, in the interest of justice, again we direct matter to be dispensed by way of Written Submissions.i.The Respondent to file and serve Claimant’s Statement of Accounts 7 days from today.ii.Claimant to file and serve Written Submissions 14 days from today.iii.Respondent to file and serve Written Submissions 14 days from today.In the event one party does not comply the other is at liberty to file their documents.iv.Mention to confirm filing of Written Submissions and get a judgement date on 7. 8.2024. Notice to issue.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 23. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 23. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 23. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 23. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 23. 5.2024HON. PAUL AOL MEMBER SIGNED 23. 5.2024TRIBUNAL CLERK JONAHMasore Nyangau advocate for the Claimant/Applicant.HT & Associates for Respondent- No appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 23. 5.2024