[2023] KECPT 1042 (KLR)
The Tribunal found that the respondent unequivocally admitted owing the claimant Kshs. 340,801.02 both in its defence and in a formal letter. The respondent's subsequent reliance on an AGM resolution passed after the claimant's withdrawal was rejected, as the claimant's right to refund had already accrued. The...
Source-derived case information.
- Citation
- [2023] KECPT 1042 (KLR)
- Parties
- Applicant: Earnest Kago; Respondent: Metropolitan Sacco Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 269 (E318) of 2023
- Procedural Posture
- Tribunal Claim / Judgment
- Outcome
- judgment for the claimant
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, PO Aol
- Legal Topics
- Refund of Member Deposits, Cooperative Society Membership, Admissions in Pleadings, Effect of Agm Resolutions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Earnest Kago
Applicant
Metropolitan Sacco Limited
Respondent
Procedural Posture
Tribunal Claim / Judgment
Legal Issues
- 1 Whether the respondent is liable to refund the claimant Kshs. 340,801.02 as admitted in pleadings and correspondence.
- 2 Whether an Annual General Meeting resolution passed after the claimant's withdrawal can bar the refund.
- 3 Whether procedural technicalities can defeat a clear admission of liability.
Ratio Decidendi
The Tribunal found that the respondent unequivocally admitted owing the claimant Kshs. 340,801.02 both in its defence and in a formal letter. The respondent's subsequent reliance on an AGM resolution passed after the claimant's withdrawal was rejected, as the claimant's right to refund had already accrued. The Tribunal held that AGM resolutions cannot override statutory entitlements or admissions of liability. Procedural technicalities or internal resolutions of the cooperative society cannot be used to defeat a clear and admitted claim. The Tribunal exercised its discretion to disregard technicalities and ordered the refund, with costs and interest to the claimant.
Court Disposition
judgment for the claimant
Orders
- The respondent to refund the claimant Kshs. 340,801.02.
- Costs and interest of the suit be in favor of the claimant.
Full Case Text
Judgment text and source record
29 paragraphs
Kago v Metropolitan Sacco Limited (Tribunal Case 269 (E318) of 2023) [2023] KECPT 1042 (KLR) (30 November 2023) (Judgment)
Neutral citation: [2023] KECPT 1042 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 269 (E318) of 2023
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & PO Aol, Members
November 30, 2023
Between
Earnest Kago
Claimant
and
Metropolitan Sacco Limited
Respondent
Judgment
1. The Claimant approached this Tribunal by filing a Statement of Claim dated 17/5/2022 and sought for:a.Refund of Kshs. 340,801. 02b.Costs and interestc.Any other relief.In support of the Claim, the Claimant filed a Verifying Affidavit, a List of Witnesses, List of Documents all dated 17/5/2022. In addition, he attached a photocopy of a hand-written letter addressed to the Respondent and a Sacco Membership Withdrawal Request from both dated 18/11/2021 together with his Membership Shares Account printed om 28/7/2020.
2. On their part, the Respondents filed a Statement of Defence on 2/6/2022 and supported by a List of Witnesses and a List of Documents all dated the same day and filed on 2/6/2022.
3. On 12/4/2023, the matter was listed for mention and in the absence of the Respondent, the Tribunal issued the following orders:a.The matter is a claim for refund, we direct it to be dispensed by way of Written Submissions.b.The Respondent is ordered to file a Statement of Accounts 14 days from today and any other document to be used at trial.c.The Respondent to file and serve Written Submissions 30 days upon service.d.Mention to confirm compliance and get a Judgement date on 28/4/2023. Notice to issue.Come mention date on 28/4/2023, the Respondent stated that they had not filed any document and requested for another 14 days to file their Written Submission of whish the Tribunal agreed to and ordered do.
4. Eventually on that mention date of 9/10/2023, the Respondents confirmed that they had filed their Written Submissions.
5. Upon reading the Written Submissions of the parties and upon considering the documentary evidence filed in the Tribunal, we find that the Claimant was a member of the Respondent and he withdrew his membership by filling a Sacco membership Withdrawal Request Form on 18/11/2021.
6. Further, we find that the Respondents have unequivocally admitted that the Respondents owe the Claimant Kshs. 340,801. 02/= vide a letter Ref: MNSS/VOL.1/28891/25-02-/22 dated 25/2/2022 which states as follows:“we refer to your letter to us dated 18th November, 2021 on the above captioned subject where we confirmed the status of your account as follows: 1. Share Capital (Non-refundable 10,000/=
2. Member’s deposits Kshs. 340,801. 02/=”This confirms that the Respondent admits the truth of the Claimant’s averments: Thus Order 13 Rule 1 of the Civil Procedure Rules comes into forefront. The order reads as follows.13(1) “Any party to a suit may give notice by his pleading or otherwise in writing that he admits the truth of the whole part of the case of any other party.”
7. The Respondents further confirm at paragraph 6 of their Statement of Defence dated 2/6/2021;“…, Further, the Respondent avers that the total sum as per the Claimants Statement of Accounts is Kshs. 340,801. 02/=”However, the Respondents in their Written Submissions at paragraph 2&4 went into a futile expedition of issues that lead to nowhere. The Respondents are reminded that one cannot plead admission in the first place and later on attempt to circumvent your own admission by bringing in procedural technicalities.In this regard, the Tribunal invokes section 4 of the Co-operative Tribunal (Practice and Procedure) Rules 2009 which reads:“The Tribunal shall have power and discretion to decide all matters before it with due speed and disputes without undue regards to the technicalities of procedure.”
8. In the Respondent’s Submissions paragraph 5 towards the end, the Respondents state that there was an Annual General Meeting held in 2022 where a resolution was passed by members that no refunds would be processed for a period of 2 years. Which resolution is said to have been approved by the Commissioner of Cooperatives and SASRA.A look at the Claimant’s withdrawal request form shows that he filled the Withdrawal Form on 18/11/2021 and forwarded to the Respondent with a hand-written letter dated the same day. This meant that the Annual General Meeting Resolution was passed when the Claimant had withdrawn and become a past member.
9. The jurisdiction of this Tribunal is clearly provided under Section 76 of the Cooperative Society’s Act (Cap 490) Laws of Kenya. In the Tribunal Case No. 694 of 2019 between Weldon Rotich as a Claimant and Metropolitan Sacco as the Respondent, this Tribunal had this to say regarding its jurisdiction and the Respondent’s Annual General Meeting Resolutions:“The wording of the Act does not provide room for parties to maneuver. The said jurisdiction is thus not subject to or subservient to resolutions passed by the respective Cooperative Societies. We find the Respondent’s Reference to the resolution passed in an Annual General Meeting in 2019 and endorsed by SASRA and the Commissioner for Cooperative Development are inconsequential. They have no legal effect as far as jurisdiction to entertain claims of this nature are concerned.”
10. To argue that the Claimant is to be bound by the Resolution of an Annual General Meeting held in 2022 in which he never participated in akin to punishing the Claimant. We therefore find that the Claimant deserve the refund which has been admitted by the Respondent.
11. The upshot of the foregoing, the Tribunal enters Judgement against the Respondents.
ORDERS 12. Judgment entered in favour of Claimant against Respondent.a.The Respondent to refund the Claimant Kshs. 340,801. 02/=b.Cost and interest of the suit be in favor of the Claimant
It is so ordered.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023In presence of:-Wandaka advocate for the ClaimantKorir advocate holding brief for Thimba advocate for the Respondent.Korir advocate – We pray for 30 days stay of execution.Wandaka advocate- We can allow 14 days.Tribunal order-21 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023