[2021] KEBPRT 23 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 270 OF 2020

EVERLYNE SABINA WAFULA..............................................................................1ST CLAIMANT

ROSEMARY LOLA..................................................................................................2ND CLAIMANT

IRENE AKINYI NG’ONG’A...................................................................................3RD CLAIMANT

ERIC JILO DHADHO.............................................................................................4TH CLAIMANT

CHEMUTAI TORONGEL......................................................................................5TH CLAIMANT

EVANS OSORO OMOKE......................................................................................6TH CLAIMANT

LUCIA NDUKU MANTHI....................................................................................7TH CLAIMANT

STEPHEN KAMWENGA MWENDWA..............................................................8TH CLAIMANT

RUKIA NAKHUMICHA KANENJE...................................................................9TH CLAIMANT

LINDA GRACE AMWAYI.................................................................................10TH CLAIMANT

MICHAEL M. MWANZIA.................................................................................11TH CLAIMANT

-VERSUS-

NHIF SAVINGS & CREDIT CO-OPERATIVE SOCIETY LTD.....................RESPONDENT

JUDGMENT

1. This Claim was instituted by way of a Statement of Claim dated 3rd September 2020. The Claimants allege that they issued Notices of withdrawal of membership to the Respondent, and further sought a refund of their savings, totalling to Kshs. 5,365,167/=, together with costs and interests. The Claimants contend that the Respondent has refused to refund their share contributions, even after issuing proper notices of withdrawal.

2. The Respondents filed a Statement of Defence, dated 3rd October 2020, where they admitted to owing the Claimant, but less Kshs. 20,500/= each, arguing that that amount constituted share capital, which is non-refundable. No copy of the bylaws has been furnished to this Tribunal to rationalize this averment. The Respondent admits that the Claimants did withdraw their membership in Paragraph 2 of the Statement of Defence.

3. The parties were ordered to proceed by way of written Submissions, and at the time of this Judgment, only the Claimants had filed their Submissions, which we have carefully considered. We find that the following are the issues needful of determination.

4. ISSUES FOR DETERMINATION:

The following are the issues that this Tribunal finds necessary for Determination:

(a)Whether the Claimants issued a proper Notice of withdrawal from the SACCO;

(b)Whether the Respondent is entitled to a refund of 5,365,167/=; and

(c)Who bears the costs of the suit?

We shall hereafter analyse the issues as follows:

5. ANALYSIS OF ISSUES

(i) Whether the Claimant issued a proper Notice of withdrawal from the SACCO

From the evidence on record, we note that the Applicants did properly withdraw from the Respondent, and issued Applications for withdrawal on 29th January 2019, 4th September 2017, 17th May 2018, 12th February 2020, 17th July 2019, 11th June 2019, 11th May 2018, 4th February 2015, 17th December 2015, and 31st August 2016 respectively, from the 1st to the 11th Claimant. This has been admitted by the Respondent in Paragraph 2 of the Statement of Defence.

The Respondent argues that the Claimants did not pursue and/or exhaust the processes in the Respondent’s bylaws, but the said bylaws were neither produced, or the process elaborated. We thus find nothing that indicates that the Claimants did not withdraw appropriately from the Respondent.

(ii) Whether the Respondent is entitled to a refund of 5,365,167/=

The Respondent has admitted to owing the Claimants 5,365,167/=,less Kshs. 225,500/=. On this premise, we preliminarily invoke the provisions ofOrder 13 Rule 2of theCivil Procedure Rules 2010, and accordingly enter a partial judgment on the admitted sum of Kshs. 5,140,267/=.

The balance of Kshs. 225,500/= is the contested amount, that forms the core of this part. On their part, the Respondents argue that this amount consist of share capital, which is non-refundable. This Tribunal has been invited to assume this fact, as there was no proof of this provision in the SACCO’s bylaws.

Section 107(1) of the Evidence Act Cap 80 of the Laws of Kenya casts the burden of proving a fact on the one that alleges. This burden has not been discharged by the Respondent in view of the disputed amount, and it must thus fail. We therefore find and do hold in favour of the Claimants that they are entitled to their full deposit, including the impugned amount of Kshs. 225,500/=.

(iii) Who bears the costs of the suit?

The position of the law, and this Tribunal is bound therewith, is that costs follow the event. NB bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimants are entitled thereto, and we thus so order.

We therefore proceed to issue the following Orders:

ORDERS

a. The Claimants’ Statement of Claim dated 3rd September 2020 succeeds;

b. Judgment be and is hereby entered for the Claimants, for a sum of5,365,167/= together with costs and interest at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 4. 11. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021

Mr. Gitonga Kamiti Member Signed 4. 11. 2021

Mr. B. Akusala Member Signed 4. 11. 2021

Mr. P. Gichuki Member Signed 4. 11. 2021

Tribunal Clerk R. Leweri

Mwangi Gichara holding brief for Ms. Makori for the Respondent

Jumba for the Claimant.

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021