[2021] KECPT 574 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 245 OF 2019

JOSEPHAT MOKUA MABERA ..................................................CLAIMANT

VERSUS

EVEREADY SECURITY GUARDS SACCO......................... RESPONDENT

JUDGMENT

Vide the Statement of Claim dated 9. 5.2019, the Claimant has moved this Tribunal seeking for judgment against the Respondent as follows:

a. Refund of deposit Kshs.80,000/=;

b. Payment of Dividends for 2015;

c. Costs and interests.

The Claimant has founded these reliefs on the fact that on or about February, 2018, he wrote to the Respondent signifying his intention to resign from it and called for deposits amounting to Kshs.80,000/=. That despite having so withdrawn, the Respondent has refused and/or declined to refund the said deposits and pay dividends for 2018.

Respondent’s Case

The Respondent has opposed the claim vide the Statement of Defencefiled on 24. 6.2019. Vide the said Defence, the Respondent acknowledged that the Claimant was one of its members until October, 2017 when he stopped making any contribution. That by 31st August, 2018, he had ceased being a member. That he was a loan defaulter and did not therefore qualify to earn interest on shares. That by the time the Claimant ceased being a member, he had made savings amounting to Kshs.60,200/= and not Kshs.80,000 as alleged.

That in the cause of his membership, the Claimant applied for and was granted loans. That as at in time he ceased being a member, he had a loan balance of Kshs.60,000/= plus 1% interest of Kshs.600.

That the Claimant was also a guarantor to the following persons who had also defaulted in repayment of the loan.

1. Musyoki Muoki Kshs.348

2. Rawe Julius Kshs.4,668/=

3. Stephen Simiyu Kshs.5,265/=

That the loan balance and the loan arrears for the members he guaranteed were recovered from his savings.

The Respondent therefore disputes the fact that the Claimant is entitled to any refund of deposits. Parties appeared before is for hearing of the Claim on 29. 9.2020.

Issues for determination

We have framed the following issues for determination

a. Whether the Claimant has established a proper basis to warrant the Tribunal to make an Order for refund of Kshs.80,000/= and payment of dividends;

b. Who should meet the costs of this claim?

The Claimant’s Case is for refund of deposits of Kshs.80,000/= and payment of dividends for the year, 2018. The Respondent has opposed the claim on ground that whilst the Claimant had made savings, the same amounted to Kshs.60,200/= and not Kshs.80,000/= as alleged. That he is not entitled to dividends for the year, 2018 since he had ceased being a member by 2017 and that he had also defaulted in repayment of the loan.

Determination

We have considered the material before us and the evidence tendered by the parties. We have particularly perused the Claimants statement of account annexed to the Respondent’s statement of Defence filed on 24. 6.2019. We note that the Claimant applied and was granted a loan of Kshs.88,000/= in March, 2017. We also note that he repaid the said loan by way of monthly installments of Kshs.40,000/= from April – October 2017. Subsequently, he ceased repaying the said loan.

We have also perused the loan application form signed by the claimant on 28. 2.2017. It shows that he applied for the said loan, that is, Kshs.88,000/=.

Whilst the Claimant contend that he issued Notice of withdrawal from the Respondent in February, 2018, he did not tender any evidence to demonstrate that he had completed repaying the said loan by then. Secondly, he did not lead evidence to demonstrate that he had saved a total sum of Kshs. 80,000/= by the time he ceased being a member of the Respondent. To the contrary, it is apparent that Claimant had guaranteed members who also defaulted in repayment of their loan.

We therefore find that in the absence of any material showing that he had repaid the loan in full and that he had made deposits upto Kshs.80,000/=, we find that the Claimant has not established his case on a balance of probability. Consequently, his claim fails flat on its foot.

Dividends

As regards the Claimant for payment of Dividends for the year, 2018, we note that the Claimant had defaulted repaying loan in the year 2017. He is thus not entitled to payment of Dividends.

Conclusion

The upshot of the foregoing is that we do not find merit in the Claimant’s claim and hereby dismiss it with no orders as to costs. Orders accordingly.

Judgment signed, dated and delivered virtually this 4th day of March, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021

Hon. B. Kimemia Chairperson Signed 4. 3.2021