[2025] KECPT 227 (KLR)

Dimkes Sacco Society Limited v Kirungu (Tribunal Case 422/E620 of 2023) [2025] KECPT 227 (KLR) (Civ) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 227 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 422/E620 of 2023

BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members

March 27, 2025

Between

Dimkes Sacco Society Limited

Claimant

and

Churchil Murithi Kirungu

Respondent

Ruling

1. For determination before this tribunal is a notice of Motion Application dated 15/3/2024 seeking for an order to compel the Claimant to produce the following documents:a.A certified copy of by-laws of the sacco as at 1st April 2022 and subsequent amendments thereto.b.A certified copy of the Claimant’s register and/or list of members where the respondent’s name so appears.c.A certified copy of claimant’s register and/or list of nominal and capital shares in the respondent’s name.d.A certified copy of the claimant’s credit policies for individual members as at 1st April 2022. e.Certified statements of dividends for the years 2022/2023 and 2023/2024; andf.A certified copy of the claimant’s dividend policies as at 1st April 2022. g.The certified approved loan application form in respect of the loan granted to the Respondent.h.the applicant also prays that the court does make such orders as it may deem just or necessary including striking out of the claimant’s pleadings for non -compliance of orders (a) above.i.costs of the application be provided for.The Respondent/Claimant filed a supporting affidavit dated 15/3/2024 with a detailed narration of his approaches to the Claimant/Respondent. Further he filed a request for documents letter dated 13/3/2024 and photocopies of the service data code.

2. In response, the Claimant/Respondent through a replying affidavit sworn by Mr. Dominic Mwangi cited section 25 of the data protection Act No. 24 of 2019 which limits disclosure of personal information to the public without the authority or permission of the person whose data is being disclosed.

3. The Applicant /Respondent filed a rejoinder to the claimant’s/Respondent issues raised in the Replying affidavit dated 24/10/2024 and expounded on his request for the documents listed in the Notice of motion Application.

4. On the pretrial mention held on 4/11/2024, by consent, the parties agreed to canvass this Notice of motion Application by way of written submissions. The tribunal ordered the parties to file and serve their written submissions accordingly.

Analysis 5. We have read the statements and the written submissions together with the authorities attached, we have further analyzed the evidence filed by both the Claimant/Respondent and the Applicant/Respondent. Subsequently we have framed one (i) issue for determinationi.Whether the Tribunal can compel the Claimant/Respondent to provide the documents requested to the Applicant/Respondent.

6. First, upon reading through the statements, the supporting affidavits, the Replying rejoinder and the written submissions. We note that there is a lot of technicalities that are imported into the arguments for a simple request that can be handled with decorum.Rule 4 of the Co-operative Tribunal (practice & procedure) Rules 2009 guide the Tribunal to decide on matters without undue regard to technicalities of procedure.

7. With this in mind, we note under paragraph 9 of the Applicant/Respondent supporting affidavit dated 15/3/2024, he deponed that when he inspected the Records of his nominal and capital shares that he had invested with the Claimants/Respondents, he discovered that they were listed with the Claimants/Respondents, he discovered that they as null. According to him, he was shocked because he had never transferred his shares to any other member.It is this discovery which made him to write to the Claimant/Respondent and requested for the listed documents to be availed to him.

8. To our understanding, the Applicant/Respondent has portrayed himself and rightly so as a member of the Claimant/Respondent despite the fact that the Claimant/Respondent state under paragraph 3 of the statement of Claim dated 4/5/2023 that the Respondent is a customer (emphasis ours) to the Claimant who held Account No. 30811 Ruaka Branch.The choice of words of the Claimant that the Applicant/Respondent is their customer is different from being referred to as a member. In Banking Law, a customer is defined as someone who has an account with a bank or who maintains a more permanent relationship with the Bank or whereas a member of a Sacco is an individual who is admitted to membership after registration and owns shares and uses the financial services provided by the cooperative.

9. On examination of the loan application form dated 31/3/2022, we note that there is no provision of members No. but we note that the loan was guaranteed by six (6) members. At the same time the Applicant/Respondent in the written submissions made it clear that he held share in the Sacco which was not controverted by the Claimant/Respondent.

10. Having established that the Applicant is a member of the Claimant but not an ordinary customer or a member of the public, we hold that he has rights as a member which are provided under section 21 of the Co-operative Societies Act Cap 490 Laws of Kenya. For purposes of this analysis, we shall reproduce the contents of Section 21(d) which states: A member of a co-operative society shall have the right to—(d)all legitimate information relating to the society, including: internal regulations, registers, Minutes of general meetings, supervisory committees, reports, annual accounts and inventories, investigation reports, at the society’s head office.This provision is very clear and the Claimants/Respondents cannot purport to use data protection Act to circumvent the rights of the Applicant without justifiable excuse.

Determination 11. Given that all members of a co-operative society or Sacco should be treated equally, if the Applicant/Respondent had no issues with the Sacco and he walked into the head office of the Sacco to request for a copy of the by-Laws, would he be denied? The answer would probably be No, he would be given at a small fee. Being a member wit equal rights like others, we therefore order that the Claimants/Respondent for a small fee to cover photocopying and other disbursements.

12. In the alternative, the Claimant/Respondent can agree with the Applicant /Respondent that the Applicant be allowed/given access to inspect the requested documents at the Sacco’s head office.

13. In conclusion we therefore allow the Notice of Motion Application dated 15/03/2024.

OrdersPrayer (I) - AllowedPrayer (II) - AllowedPrayer (III) - AllowedPrayer (IV) - Not AllowedPrayer (V) – AllowedPrayer (Vi) – Not AllowedPrayer (VII) – AllowedCosts of the application to be in the cause.Mention for Pre-Trial Directions on 18/9/2025. Notice to issue

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 3.2025TRIBUNAL CLERK JONAHWachira Muturi Advocate for the Claimant/Respondent.Lewis Kairu Advocate for the Respondent-Non-AppearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 3.2025