[2025] KECPT 299 (KLR)

Kanyingi v Orient Savings & Credit Sacco Limited (Tribunal Case E1031 of 2024) [2025] KECPT 299 (KLR) (Civ) (29 May 2025) (Judgment)

Neutral citation: [2025] KECPT 299 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case E1031 of 2024

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

May 29, 2025

Between

Susan Wariuko Kanyingi

Claimant

and

Orient Savings & Credit Sacco Limited

Respondent

Judgment

1. The Claimant brought the Claim herein vide Statement of claim dated 27th September, 2024, filed 23rd December, 2024. The Claimant’s Claim against the Defendant is for refund of Kshs. 575,207/= on account of her total contributions to the Defendant as a member and TSC No. 218947, upon her formal withdrawal from the Defendant.The Claimant avers that demand and notice of intention to sue was issued but the Defendant persists in refusing to settle the same, hence the filing of the Claim.The Claimant also Claims costs of the suit and interest at Tribunal rates. In addition to the Statement of Claim, the Claimant filed a statement dated 27/9/2024 and the list of documents dated 27/9/2024. In her Statement, the Claimant states that she was a faithful member of the Respondent until the year 2024 when she voluntarily withdrew from the society and requested refund of shares, amounting to Kshs. 575,207/=.The Claimant produced in her list of documents a member statement in support of her Claim.

2. In response to the Claimant’s Claim, the Defendant filed a statement of Defence dated 21/09/2025, wherein it denies the Claimant’s claim and avers on a without prejudice basis that: On 02/05/2024, the Defendant received a duly completed of membership form from the Claimant dated 04/08/2023 under which she indicated that she was ceasing membership on 04/08/2023 which date was long past and in violation of the Defendant’s policies which provide for 60 days cessation notice.On 26/06/2024 the Defendant responded to the Claimant’s cessation of membership form and informed her that whereas it was alive to its obligation to refund share deposits, it was faces with financial challenges as a result of which the Defendant offered to refund the share deposits in a phases out manner.That the Claimant did not respond to the Defendant’s offer to be paid in a phased out manner. That the defendant is still facing financial challenges which resulted from mismanagement by a previous Board of Directors and Management.

3. That a Special General Meeting was held on 07/12/2016, during which members agreed to suspend withdrawal from membership in line with the mandate of Sacco Society Regulatory Authority to avoid total collapse of the Defendant.That accordingly, every member who has expressed the desire to withdraw from membership, the Defendant has entered into an agreement of payment of share deposit in a phased-out manner. That the Defendant did not refuse or neglect to refund the Claim but proposes to pay in phased-out manner to avoid total collapse. That the suit be dismissed and the Defendant be allowed to refund the deposits in monthly installments of Kshs. 12,000/= until payment in full.

4. The statement of Defence is accompanied by the defendant’s Statement dated 15/02/2024 signed by one Moses Ng’ang’a Kamururu and the List of Documents dated 21st February, 2025 with several documents in support of its Claim. That is to say, the form for cessation of membership, an email of 20th September, 2024, minutes for Special General Meeting held on 7th December, 2016, member’s statement for January to December, 2025 and an Affidavit of means.On 24th April, 2025, the parties were directed to canvass the matter by way of Written Submissions. As at the time of Writing this judgement, the only submissions filed were those of the Claimant dated 2nd May, 2025.

Analysis and Determination. 5. We have considered the documents filed by both parties and the Submissions of the Claimant.It is trite law that he who alleges must prove. It is not in dispute that the Claimant was a member of the respondent; neither is it in dispute that she had contributed the sum of Kshs. 545,107. 06/= as the same has been shown by the documents filed by both parties before the Tribunal. Further it is not in dispute that the Claimant ceased to be a member of the Respondent and sought refund of the deposits from the Respondent. according to the Claimant, the Respondent refused and failed to refund the deposits as per the by-laws despite demand.The Respondent on the other hand attributes the failure to refund the Claimant’s savings to financial challenges experienced by the Respondent owing to the embezzlement of the funds by a previous Board of Directors and Management and proceeds to state that it is willing to pay the Claimant the refund in phases as per a Resolution made in a Special General Meeting held on 7th December, 2016. On the basis of which a member’s share deposits refunds request was made.In the said undated proposal, the Respondent proposes to pay the Claimant by way of installments of the sum of Kshs. 12,000/=.

6. It is not clear when the proposal was made. It is however not in doubt that as at the date of writing this Judgement the Respondent had not demonstrated that it had made any payment to the Claimant under the proposal.We note that despite filing an affidavit of means to support its averment of financial ongoing challenges, the Respondent has failed to provide actual evidence in support of the averment.In the circumstances, we find that the Claimant’s claim is merited. We therefore enter judgement in favour of the Claimant against the Respondent in the sum of Kshs. 575,207/= with costs of the Claim and interest on the principle sum and the costs from the date of filing of the Claim until payment in full,

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 5.2025Hon. J. Mwatsama Deputy Chairperson Signed 29. 5.2025Hon. Beatrice Sawe Member Signed 29. 5.2025Hon. Fridah Lotuiya Member Signed 29. 5.2025Hon. Philip Gichuki Member Signed 29. 5.2025Hon. P. Aol Member Signed 29. 5.2025Tribunal Clerk MutaiNgichabe advocate for the Claimant.Sabai advocate for the Respondent.Sabai advocate – We pray for 30 days stay of execution.Ngichabe advocate- We do not opposeTribunal order30 days stay of execution granted.Hon. J. Mwatsama Deputy Chairperson Signed 29. 5.2025