[2024] KECPT 1373 (KLR)

Gacheru v Boots Sacco Ltd (Tribunal Case 4 of 2019) [2024] KECPT 1373 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1373 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 4 of 2019

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

August 29, 2024

Between

Margaret Wairimu Gacheru

Claimant

and

Boots Sacco Ltd

Respondent

Judgment

1. The Claim herein was brought by the Claimant vide her statement of Claim filed on 8th January 2019, accompanied by a Witness Statement and List of Documents.

2. The Claimant prays for Judgement against the Respondent for :-a.The full refund of Ksh.113,000/- being the share contribution.b.Compensation in the nature of punitive and general damages.c.Compensation for loss of benefit of the refund since June 2014. d.Costs.e.Interest.f.Any other relief that this Tribunal may deem fit and just to grant.

3. The Claimant avers that despite demand the Respondent has failed, refused and declined to settle the refund. The Claimant filed a new list of documents on 14th May 2019 and a further list on 1st November 2021. The Respondent responded to the Claimant’s settlement of Claim vide the Respondent’s Statement of Defence on 15th February 2019, filed on the even date.

4. In response the Respondent states that it has not failed, refused and/or declined to make good the Claimant’s demands, the correct position being that the Respondents formal officials misappropriated all money belonging to the Respondent and the current officials have floated proposals to the Claimant bearing in mind the abysmal state of its finances but the Claimant has refused/declined the offer.

5. That there was an inspection which was conducted by the Commissioner of Co-operatives where it was found that the former officials had misappropriated the Respondent’s money though there was no discharge.

6. That the refund sought by the Claimant constitutes money spread over a long period of time, it would be unjust and punitive not only on the Respondents but on its members to order the Respondent to pay it back in 1 or 2 instalments.

7. That there are other members seeking refund and the Respondent has to balance between paying members who wish to leave and sustaining the Sacco’s full recovery.

8. On 17th May, 2019 the Respondent filed its witness statement dated 15th May 2019. On 1st November 2021 the Claimant filed a new Claimant’s statement together with a statement of issues. From the record, we note that the Respondent on 7th November 2019 was granted leave to file an amended defence and the same was filed on 8th August 2019. The case was canvassed by way of written submissions.

Claimant’s Case 9. The Claimant’s written submissions dated 5th December 2023 was filed on 13th December 2023. The Claimant reiterates her case and states that the Respondent does not deny owing the Claimant her lawful and legal contributions of Kshs.113,000/- that the Claimant is entitled to her full refund as opposed to the Respondent’s allegation that the Claimant should not seek her entire contributions.

10. That the money alleged to have been misappropriated was recovered on the effort of supervisory committal of which the Claimant was a member. The Claimant states that the Respondent’s inability to recover money from alleged embezzlers should not be visited on the Claimant and any reliance on that fact is an abuse of the Court process.

11. That the Claimant debunked the said allegations when she produced the Report dated 8th October, 2008 by the Nairobi East District Co-operative Officer (CS/NO.3011) which was categorical that no funds were lost as the proceeds from the sale of another vehicle had been reimbursed to the Sacco to the tune of Ksh.2. 08 million.

12. That evidence was adduced to prove the allegation that money was lost from the Respondent’s account. That the Claimant has proved her case and is entitled to refund.

13. In support of her claim, the Claimant produced a copy of her pay slip, letter of withdrawal, letter from the Commissioner dated 7th January 2015 and a letter from the Respondent acknowledgement of a demand.

14. The Claimant in her statement of issues stated only one issue being whether the Respondent is unlawfully holding onto the claimant’s/member contributions of Ksh.113,000/=.

Respondent’s Case 15. In its submissions dated 2nd February 2024, the Respondent states that the burden of proof herein lies on the Claimant.

16. That there is no evidence and none of the Claimant’s documents on record proves that the Claimant had saved Ksh.113,000/-, hence the Claimant has failed in discharging the burden of proving that the Respondent owes her Ksh.113,000, or any amount thereof.

17. The Respondent attributes the Claimant to loss of money allegedly misappropriated when she was a member of the Respondent’s Supervisory Committee. That the Claimant did not produce any evidence that the money was repaid.

Determination 18. We have considered the pleadings of the parties and the documents produced and the written submissions on records. There being no evidence in support of the claim for compensation in the nature of punitive and general damages, and loss of benefit under prayers b and c of the statement of claim, we shall address only the prayer for refund of the sum of Ksh.113,000/-, costs and interest.

19. The main issue for the Tribunal to determine is whether the Claimant is entitled to the refund of Ksh. 113,000/- being the shares contribution.

20. The Respondent has not denied that the Claimant was a member of the Respondent, neither has it denied that the Claimant was making share contributions. Whereas the Respondent does not deny owing the Claimant, it claims that the Claimant has not proved that the Respondent owes her the sum of Kshs.113,000/-.

21. However we note that the Respondent did not dispute the sum demanded either by the Claimant, her advocates or the Commissioner of Co-operatives. Only stating in its undisputed letter dated 29th September, 2014 addressed to TM. Kuria & Co. that it’s Bank Account was frozen by the Regulator, hence no payment could be made and that they would communicate on a workable payment plan once normal operations resumed.

22. The said letter also did not contain any matter or issue in regards to the misappropriation or embezzlement alleged in the Respondent’s amended response to claim and heavily relied on by the Respondent in its written submissions. In any event the matter of misappropriation is not a matter before us. We therefore restrict ourselves to the claim before us being that of a refund of share deposits.

23. Consequently, we do find that the Claimant has proved her case of refund on a balance of probability. We therefore enter Judgement in favour of the Claimant against the Respondent in the sum of Ksh.113,000 plus costs of suit and interest at Tribunal rates from the date of filing suit to the date of this Judgement.

Upshot 24. We enter Judgement in favour of the Claimant against the Respondent for Kshs.113,000/- plus cost and interest at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024Tribunal Clerk JonahKaraya advocate for the ClaimantMbuthia advocate for the RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024. Mbuthia:We request for 30 days stay of execution.Karaya:We object to the same.TRIBUNAL ORDERS30 days of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024.