https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/247

Ayieko v Ufundi Cooperative Sacco (Tribunal Case E180 of 2025) [2026] KECOPT 247 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KECOPT 247 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E180 of 2025 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 28, 2026 Between Washington Ayieko Claimant and Ufundi Cooperative Sacco Respondent Judgment Introduction 1.The Claimant instituted this claim against the Respondent seeking refund of shares amounting to Kshs. 273,200 together with interest thereon, costs of the suit and such further relief as this Honorable Tribunal may deem fit and just to grant.The Claimant avers that he was a member of the Respondent Co-operative Society from the year 1986 until the year 2020 when he voluntarily withdrew his membership from the Society and was duly cleared.The Claimant contends that despite his exit from the Society and subsequent demand for payment, the Respondent has failed and/or neglected to refund his shares. The Claimant’s Case 2.The Claimant filed a Statement of Claim, Witness Statement, List of Documents, Verifying Affidavit and List of Witnesses.In support of his claim, the Claimant produced the following documents:I.Pay slip for September 2020;II.Clearance Certificate issued by the Respondent;III.Demand Letter dated 14th January 2025.It is the Claimant’s case that upon withdrawal from the Respondent Society and clearance thereof, he became entitled to refund of his shares amounting to Kshs. 273,200.The Claimant maintains that despite demand having been made through his advocates, the Respondent failed to settle the said amount, thereby necessitating the institution of the present proceedings. The Respondent’s Case 3.The Respondent entered appearance and filed a Statement of Defense together with a Witness Statement and List of Witnesses.The Respondent denies owing the Claimant the amount claimed and avers that the Claimant failed to provide updated check-off details necessary for reconciliation and computation of the correct figures allegedly due.The Respondent further avers that the Claimant guaranteed another member’s loan which remains unpaid and that upon computation and reconciliation of accounts, the Respondent intended to file a counterclaim against the Claimant.In the Witness Statement of one Alphone Makori, the Chief Executive Officer of the Respondent, it is stated that the Claimant’s claim forms part of claims intended to be settled upon sale of the Respondent’s property which had allegedly been advertised for sale. Issues for Determination 4.Having carefully considered the pleadings, documentary evidence and written submissions on record, the Tribunal is of the view that the following issues arise for determination:I.Whether the Claimant has proved entitlement to refund of shares amounting to Kshs. 273,200;II.Whether the Respondent established any lawful basis for withholding payment of the said amount;III.Whether the Claimant is entitled to the reliefs sought. Analysis and Determination 5.There is no dispute that the Claimant was a member of the Respondent Society from 1986 until the year 2020. The Claimant produced a Clearance Certificate issued by the Respondent confirming that he had been duly cleared upon cessation of membership.The Tribunal notes that the Respondent did not challenge the authenticity or validity of the said Clearance Certificate.The effect of clearance upon withdrawal from a co-operative society is that a member becomes entitled to settlement of his dues and refund of shares subject only to lawful deductions, if any.The Claimant particularized the amount claimed as Kshs. 273,200. In rebuttal, the Respondent merely alleged that the figures had not been properly computed owing to absence of updated check-off details.However, the Respondent failed to produce before this Tribunal any reconciliation statement, audited records, computation of accounts or any documentary evidence whatsoever disputing the amount claimed by the Claimant.Sections 107 and 109 of the Evidence Act, Cap 80 Laws of Kenya place the burden of proof upon the party asserting the existence of a fact. While the Respondent alleged inaccuracies in the Claimant’s computation, no evidence was tendered in proof thereof.The Court in Kirugi & Another v Kabiya & 3 Others held that the burden of proof in civil matters always rests upon the plaintiff, though the standard is on a balance of probabilities. Once a claimant places credible evidence before the court, the evidential burden shifts to the opposing party to rebut the same.The Respondent further alleged that the Claimant guaranteed another member’s loan which remains unpaid. Once again, no documentary evidence was produced in support of the alleged guarantee, the alleged loan default, or the Claimant’s resultant liability.Further, although the Respondent indicated its intention to file a counterclaim against the Claimant, no such counterclaim was ever filed before this Tribunal.The Tribunal is therefore unable to attach any probative value to allegations which remain wholly unsubstantiated. It is settled law that submissions and pleadings do not amount to evidence unless supported by documentary or oral proof. In CMC Aviation Limited v Crusair Limited the Court held that pleadings are not evidence and parties are bound to prove the facts they assert.Notably, the Respondent’s Chief Executive Officer stated in his witness statement that the Claimant’s claim forms part of claims intended to be settled upon sale of the Respondent’s property. In the Tribunal’s considered view, this statement amounts to an acknowledgement of indebtedness rather than a denial of liability. Further, where evidence tendered by a party remains substantially uncontroverted, a court is entitled to rely upon the same. In Trust Bank Limited v Paramount Universal Bank Limited & 2 Others the Court observed that uncontroverted evidence which is credible and consistent may safely be relied upon by the court.The Respondent’s financial position or intended sale of property cannot operate as a lawful defense to a valid and matured claim.Consequently, the Tribunal finds that the Claimant has proved his claim on a balance of probabilities and that the Respondent failed to establish any lawful basis for withholding payment of the Claimant’s shares.On interest, the Tribunal is satisfied that the Claimant is entitled to interest from the date of demand being 14th January 2025 until payment in full.On costs, the general principle is that costs follow the event and the Tribunal finds no reason to depart from that principle in the present matter. Final Orders 6.Accordingly, Judgement is hereby entered in favor of the Claimant against the Respondent in the following terms:a.The Respondent shall pay the Claimant the sum of Kshs. 273,200 being refund of savings;b.The said amount shall attract interest at court rates from 14th January 2025 until payment in full;c.Costs and interest from date of filing suit. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MAY, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 28/5/2026HON. BEATRICE SAWE- MEMBER SIGNED 28/5/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 28/5/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 28/5/2026HON. P. AOL - SIGNED 28/5/2026Court Assistant – MutaiKarue advocate holding brief for Chimei advocate for the ClaimantMutiambo advocate holding brief for Orina advocate for the RespondentMutiambo advocate;We pray for 30 days stay of executionKarue advocate;We are not opposed.Tribunal order;30 days stay of execution granted.