[2024] KECPT 1717 (KLR)

Kamau v Kenya Qatar Diaspora Savings and Credit Society (Tribunal Case 259/E 020 of 2022) [2024] KECPT 1717 (KLR) (31 October 2024) (Judgment)

Neutral citation: [2024] KECPT 1717 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 259/E 020 of 2022

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

October 31, 2024

Between

Jonathan Nyamweya Kamau

Claimant

and

Kenya Qatar Diaspora Savings and Credit Society

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

1. Matter for determination is Statement of Claim dated 17/1/2022 which the Claimant avers that he was a registered member of the Respondent under membership No. 0592 and accumulated shares worth Kshs. 830,500/= only.On or sometime in September 2016, the Respondent came with a project to offer its registered members a platform to purchase motor vehicle. The Claimant took up the offer and entered into agreement with the Respondent for a facility of Kshs. 1,309,200/= for purchase of motor vehicle KCM 951U.

2. As consideration, the Claimant used his savings of Kshs. 400,000/= and the Respondent would run and manage the taxi business on behalf of the Claimant to recover balance of Kshs. 909,200/= and hold profits on behalf of the Claimant.

3. The Claimant bought motor vehicles and the Respondent managed the car, earned income from the taxi business.However, the Respondent has neither accounted for any income from the taxi business nor disbursed profits to the Claimant.When the Claimant inquired about motor vehicle, the Respondent showed him a Jalopy which in the Claimant’s view is unroadworthy and not commensurate to the Claimant. The Claimant avers he has not received profits and the Respondent has refused to respond to his calls.The Claimant’s prayers are for: -a.Full payment of Kshs. 830,500/= contributions as per the Member’s account statement as at December 2021. b.Dividends on (a) above at the Respondent’s approved rates from the date of commencement of savings (November 2015) to the date of full payment.c.A true record of accounts from the Taxi business.d.Total income from the taxi business.e.In the alternative and without prejudice to (d) above, a new motor vehicle or repair of the motor vehicle handed to him to roadworthy status at the Respondent’s cost.f.Termination of my membership with the Respondent.g.The cost of the suit.The Claimant filed Witness Statement dated 17/1/2022 and List and Bundle of Documents dated 17/1/2022 filed on 12/5/2022 which documents include:i.A letter of offer dated 26th September, 2017ii.A letter of acceptance dated 7th January, 2018iii.Motor vehicle account statement dated 7th January, 2018 for the period 1st September, to December, 2017. iv.Motor Vehicle account statement dated 10th April, 2018 for the period of 1st September, to 31st March, 2018. v.A full member Account Statement from the date November, 2015 to 24th April, 2019. vi.A demand letter dated 15th June, 2021. vii.Respondent’s By-laws.viii.Any other documents to be produced with the leave of the Tribunal.

4. The Respondent did not file any documents and the Claimant requested for Request for Judgement dated 1/8/2023 filed on 22/8/2023. The same was entered on 14/12/2023. Matter came for formal proof hearing on 2/7/2024 when Claimant Witness 1, the Claimant testified and adopted his Witness Statement as his evidence in chief.He produced his List of Documents dated 17/1/2022 as his Supporting documents for the case marked a Claimant’s Exhibit 1-7. He prayed for the Respondent to refund his cash, his motor vehicle as used for Uber services.

5. The Claimant filed Written submissions 5/9/2024 for 6/9/2024. Upon hearing the Claimant, and having considered their Written Submissions; we find the following;The Claimant has proved he was a member of the respondent and purchased a motor vehicle.We confirm that the motor vehicle was purchased and was being managed by the Respondent.Issues to be determined are:Whether the Claimant is entitled to be paid dividends.The Dividends are paid out once they are declared in the audited accounts of a society. This is usually during an Annual General Meeting. Unfortunately, in this case, the Claimant has not filed any of the audited accounts from the Respondent and as such, the same cannot be granted.As such, we enter judgement in favour of the Claimant against Claimant for:a.Repayment of Kshs. 830,500/= as per member’s account statement of December 2021b.Dividends on (a) above at the Respondent’s approved rates from the date of commencement of savings (November 2015) to the date of full payment – Fails.c.The Respondent to give a true record of Account from the Claimant’s taxi business and its income 30 days hereind.In the alternative and without prejudice to (d) above, a new motor vehicle or repair of the motor vehicle handed to him to roadworthy status at the Respondent’s cost-failse.Prayer f, the Claimant to withdraw as per the Respondent’s by-laws.f.Claimant granted cost and interest in the Claim at Tribunal rates from the date of filing Claim.g.Mention on 13. 2.2025. Notice to issue.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF OCTOBER, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 31. 10. 2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 31. 10. 2024HON. BEATRICE SAWE - MEMBER SIGNED 31. 10. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 31. 10. 2024HON. PHILIP GICHUKI - MEMBER SIGNED 31. 10. 2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 31. 10. 2024HON. PAUL AOL - MEMBER SIGNED 31. 10. 2024TRIBUNAL CLERK JEMIMAHNo appearance for ClaimantNo appearance for Respondent