[2025] KECPT 292 (KLR)

Board of Management Sonyaco Sacco & another v Ochieng (Tribunal Case 484/E022 of 2023) [2025] KECPT 292 (KLR) (29 May 2025) (Judgment)

Neutral citation: [2025] KECPT 292 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 484/E022 of 2023

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, F Lotuiya, P. Gichuki & PO Aol, Members

May 29, 2025

Between

The Board of Management Sonyaco Sacco

1st Claimant

Sonyaco Sacco

2nd Claimant

and

Violet Awuor Ochieng

Respondent

Judgment

1. The Statement of Claim dated 28th August, 2023 was filed by the 1st and 2nd Plaintiffs seeking orders against the Respondent, their former employee tasked who was tasked with the day to day running of the Sacco, to compel her to handover among others:i.The Sonyaco Society Registration Certificateii.The title deed for the Sonyaco Saccoiii.Money illegally collected/received from a tenant called Caroline Jagero on or about the 14th March 2023 for rent.iv.Payment vouchers for October to December 2022. v.Keys for all the offices.vi.Passwords for Teacher Service Commission used for entry of loans advanced to members and for making recoveries. Password for accessing Co-operative Bank Statements and password for Kenya Revenue Authority.vii.Letterheads and all other documents and information in her custody due to the critical office she was holding.

2. It was the Plaintiffs position that the Respondent on or about 15th August, 2023 without any reason or explanation stopped reporting to work or receiving calls, a fact that frustrated the running of the Sacco as the Respondent had custody of all the official records and documents and passwords of the Sacco - some of which she was the only one with exclusive access for privacy and accountability purposes.That the Respondent was also the only one making and receiving all official correspondences, and preparing or keeping lease agreements for tenants, and the one keeping all bunches of keys to all the offices of the Plaintiffs.That at the time the respondent left, she did not hand over any keys or explain where she had kept or left any of the documents that had been in her exclusive custody, which made it very difficult for the Plaintiffs to run the affairs of the Sacco.That the Plaintiffs were unable to even access the Sacco letterheads and despite two notices to the Respondent to speedily handover keys, passwords and other documents, the Respondent ignored the same but continued to have correspondence on behalf of the Plaintiffs without bringing the same to the attention of the Plaintiffs, necessitating the filing of the claim.

3. The Respondent filed her Statement of Defence and Counterclaim dated 25th September, 2025 stating among others that the suit is frivolous, vexatious, lacking in factual and legal foundation and without any proper cause of action and therefore a waste of judicial time. It was the Respondent’s position that the suit is but a witch-hunt precipitated by the Respondent’s best efforts to salvage the 2nd Plaintiff from abuse by the 1st Plaintiff by supporting the cause of Sacco members in CTC No. E011 of 2023 presently before the Tribunal that concerns allegations of misappropriation of the Sacco funds.According to the Respondent, the witch-hunt started back in March 2023 when the 1st Plaintiff issued a letter dated 17th March 2023 directing all the staff members of the 2nd Plaintiff from taking directions from anyone else except the management board of the 2nd Plaintiff, which letter essentially precluded the Respondent from discharging her job description as the manager of the 2nd Plaintiff.

4. It is the Respondent's position that she is not in possession of any material items and or records belonging to the 2nd Plaintiff, and the contention that she left her workplace on 15th March 2023 without any proper cause or notice is untrue and misleading as the Respondent attended her place of work faithfully and fulfilled the demands of her job description diligently until on or about 5th of April 2023 when the 1st Plaintiff precluded her from accessing her office and tools of work.The Respondent also stated in her Statement of Defence that it is a misrepresentation of facts as at 15th August 2023 she was no longer an employee of the 2nd Plaintiff having received a notice of suspension from the 1st Plaintiff on 12th May, 2023 and subsequently a letter terminating her employment on 11th July, 2023. That all documents belonging to the 2nd Plaintiff including the Sacco registration certificate, title deed, payment vouchers, letterheads, rent paid by the tenant Carolyn Jagero and other documents were all in the Respondent’s office to which the 1st Plaintiff denied her access by installing another padlock and then later forcefully breaking into the premises to retrieve the said items.

5. It is also the Respondent’s position in respect to passwords for the Teachers Service Commission and Kenya Revenue Authority websites that she did not exclusively hold the said passwords as alleged, as the loans officer one Risper Achieng held the passwords and can avail the same to the Plaintiffs.The Respondent also stated in her Statement of Defence that she has not been receiving any correspondence from the 2nd Plaintiff members and tenants, and the only communication she made to the members since she ceased to be an employee of the 2nd Plaintiff is merely informing them that she is no longer a substantive office holder in the employ of the 2nd Plaintiff.The Respondent also in her Statement of Defence made a counter claim of Kshs. 96,000/= being her personal finances which she was not allowed to retrieve when she was denied access.

6. At trial, the Claimants were represented by two witnesses. The first witness Rosecheus Otete who was the Chairman of the board testified that they were never served with the counter claim, they only saw the claim once it was filed in court and it is baseless. That the documents they are seeking the court’s intervention for the Respondent to release to them, she was the custodian. That there is no malice in their claims.The second witness Samuel Onyango was the Vice Chairperson of the board and he testified that the Respondent was their employee for seven years and they are suing her for her to release the documents to them, and that they broke into her office after she deserted duty and refused to come open the office.

7. The Respondent at the hearing testified that the Board of management has no role in the day to day Management of the Sacco, that she is not the only employee with passwords at the Sacco, that she always locked her office every evening before leaving and she left her duties when she came and found her office double locked. She also testified that she did not have custody of the documents the Claimants are seeking from her, and that the claim is malicious. That her problems and tension with the board started when she wrote to the commissioner to undertake an inspection of the Sacco. It was also her testimony that she left everything in the office including her own money as she was locked out of the office by the board.This Tribunal on 11th July, 2024 made further orders for the parties to file their submissions, and the Claimants filed their submissions dated 25th July, 2024 stating among others:i.That the Tribunal does not have jurisdiction to hear and determine the counterclaim as it is a civil claim lodged for recovery of money allegedly lost or stolen in the premises of the Claimants. That's such a claim is not a dispute affecting the business of a cooperative society and as such, the Tribunal does not have jurisdiction to hear and determine the counterclaim.ii.That's their claim as to the affected documents such as the registration certificate of the society is a dispute that concerns the business of a cooperative society.iii.That their claim is not an employment claim as they've already settled all matters of employment by issuing requisite notices and giving the Respondent a chance to be heard before dismissing her.iv.That the Respondent did not explain the source of the Kshs. 96,000/= and did not produce any evidence to show that it existed.v.That the Respondent also did not make any report to the police about losing money and there was no evidence or even an OB Report of anything at all.vi.That the Respondent took no action at all about the money until the time she was sued and she remembered to lodge the claim in form of a counterclaim.vii.That the Claimants have proved their case on a balance of probability as the Respondent was the only one responsible for the day-to-day running of the Sacco, and the board did not have any office within the premises and were not in charge of keeping the documents. That it was the responsibility of the Respondent as the CEO of the Sacco to protect assets, prepare financial statements and to advise the board.

8. The Respondent on her part filed her submissions dated 4th December, 2024 stating among others:i.That the Claimants have failed to prove their case on a balance of probabilities and as such they suit should be dismissed.ii.That the dispute is an employment dispute and as such the Tribunal does not have jurisdiction.iii.That the Claimants were unable to prove the existence of the documents in their testimonies, as well as show any documentation that those documents were handed over to the Respondent at some point.iv.That the Claimants did not produce the Respondent’s appointment letter or description of her duties for the Tribunal to understand what assets of the Claimants she signed for and was in possession of.v.That who alleges must prove and the Claimants have not proved that she was in possession or control of the documents.vi.That the Respondent during cross examination was able to explain that the money she is demanding in the counter-claim, belonged to a merry go round.

9. We have considered the Statement of Claim, the Defence and Counterclaim filed and evidence adduced at trial, and the only question remaining for determination is as to whether either side has managed to prove their case on a balance of probabilities.Has either side managed to prove their case on a balance of probabilities?Before we look into that, It is first important to get out of the way the nagging question that has arisen as to whether this Tribunal has jurisdiction to entertain and determine this matter. Our response is in the positive, as this case does not concern the terms of employment. It concerns the day-to-day management of a society and the disputes that have arisen in the course of that day-to-day management of that society.To be clearer, there is nothing about salary, employment contract or terms of employment or benefits related to employment that are in dispute in this case, and as such the jurisdiction of this Tribunal cannot be denied.

10. What is in doubt, is at to whether both the Claimants and the Respondents have been able to prove their respective cases on a balance of probabilities. This degree of proof is well enunciated in the case of Miller vs Minister of pensions [1947] cited with approval in D.T. Dobie Company (K) Limited vs Wanyonyi Wafula Chebukati [2014] eKLR where the court stated:...That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, thus proof on a balance or prepodence of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”It is trite law that he who alleges must prove, or whoever desires any court to give judgment as to liabilities dependent on the existence of facts which he asserts must prove that those facts exist. In this particular case, the Claimants have not proven that the Respondent had the documents, or that exclusively she was the only person with the passwords at the society. In equal breath, the Respondent has also not proved the existence of the Kshs. 96,000/=that she alleges was in her office. The evidence as to the existence of the facts that were being alleged by both parties for lack of a better term was underwhelming. Final Ordersi.The Statement of Claim dated 28th August, 2023 and the Counter-claim dated 25th September, 2025 both fail.ii.Parties to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 5.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 5.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 5.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 5.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 5.2025HON. P. AOL MEMBER SIGNED 29. 5.2025Tribunal Clerk MutaiMs. Omondi advocate for the RespondentMr. Otieno advocate holding brief for Ms. Adoyo for the 1st and 2nd ClaimantsHon. J. Mwatsama Deputy Chairperson Signed 29. 5.2025