[2024] KECPT 949 (KLR)

Karanja v Metropolitan National Sacco Society Ltd (Tribunal Case 128 (E153) of 2023) [2024] KECPT 949 (KLR) (27 June 2024) (Judgment)

Neutral citation: [2024] KECPT 949 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 128 (E153) of 2023

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

June 27, 2024

Between

Khadija Karanja

Claimant

and

Metropolitan National sacco Society Ltd

Respondent

Judgment

1. The matter before the Tribunal for determination is the Claimant’s claim for refund of the sum of Kshs. 230,356/= plus interest at commercial rates of 14% per annum from 31st August, 2022 until judgement or at such rates and for such period as the Tribunal deems fit.

2. The claim is brought by was of a Statement of Claim dated 1st December, 2022, filed on 3rd March, 2023, wherein the Claimant states that she was member number 12228 of the Respondent. That the Respondent received monthly share contributions deducted from the Claimant’s salary. That on 3rd August, 2021, as per the Respondent’s rules and regulations, the Claimant issued a 60-day notice to withdraw from being a member of the Respondent with effect from 3rd September, 2021. That further to the withdrawal, the Claimant required the Respondent in writing to remit a total refund of her shares and dividends amounting to Kshs. 230,356/= as at 31st August, 2022. That the Respondent has neglected, refused and/or failed to pay the said sum or Any part thereof despite demand.

3. The Respondent responded to the Statement of Claim vide the Statement of Defence dated 28th March, 2023. Therein, the Respondent confirms that the Claimant was indeed a member of the Respondent and was making monthly member deposit installments, but does not admit to the alleged pay slip deductions or to receiving a withdrawal letter. The Respondent further states that as per the Respondent’s 2022 Annual General Meeting resolutions of the General Assembly, members resolved and agreed to schedule refunds after two years due to the liquidity challenges facing the Respondent. That there was a refund schedule on how the Claimant and other members were to be refunded. That no demand or intention to sue was received. That the Claimant is well aware of the Respondent’s liquidity challenges and that his refund had to be put in advance in accordance with the 2022 Annual General Meeting resolutions. Consequently, the Respondent prays that the Claimant’s suit be dismissed with costs.The Tribunal directed the parties to file Written Submissions in support of their respective cases.

Claimant’s Case. 4. The Claimant filed a Witness Statement on 3rd March, 2023. The Witness Statement dated 15th December, 2022 replicates the statement of claim.The Claimant also on 3rd March, 2022 filed a List of Documents dated 1st December, 2022, containing a letter dated 3rd August, 2021 said to notify the Respondent of the intention to withdraw upon retirement. A letter dated 1st August, 2022 requesting remittal of the sum of Kshs. 230,356/= as at August, 2022, a Demand Letter dated 25th October, 2022 from the Claimant’s advocate to the Respondent.The Claimant’s Written Submissions dated 18th August, 2023 were filed on 11th March, 2024.

Respondent’s Case. 5. The Respondent opposed the claim stating that though the Claimant was a member of the Respondent, the Respondent could not make the refund due to liquidity problems which led to the refunds being rescheduled.As at the time of Writing this judgement, the Respondent’s Submissions were not on record. Determination.We have considered the documents filed by the parties and the Submissions of the Claimant and are satisfied that; -i.The Claimant was a member of the Respondent and she sought for refund of her shares upon retirement.ii.The Claimant’s advocate served upon the Respondent a demand which was duly stamped in receipt by the Respondent.iii.The Respondent does not contest the demanded of Kshs. 230,356/=.iv.The Claimant has not been refunded any money despite lapse of the alleged scheduled period.v.There is no evidence of communication or other document in regards to the Respondent’s alleged liquidity challenges or the alleged Annual General Meeting resolution said to have been made after the retirement of the Claimant.vi.From the Claimant’s letter for refund of shares dated 3rd August, 2022, the Claimant requested the Respondent to refund her shares of Kshs. 230,356/= as at August, 2022.

6. Consequently, we find that the Claimant has proved her case on a balance of probability. We therefore enter judgement in favour of the Claimant in the sum of Kshs. 230,356/= plus costs of suit and interest at Tribunal rates from the date of this judgement until payment in full

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2024. Hon. B. Kimemia - Chairperson Signed 27. 6.2024Hon. J. Mwatsama - Deputy Chairperson Signed 27. 6.2024Hon. Beatrice Sawe - Member Signed 27. 6.2024Hon. Fridah Lotuiya - Member Signed 27. 6.2024Hon. Philip Gichuki - Member Signed 27. 6.2024Hon. Michael Chesikaw - Member Signed 27. 6.2024Hon. Paul Aol - Member Signed 27. 6.2024Tribunal Clerk JonahMkamani advocate holding brief for Gitonga Muriuki advocate for the Respondent.Khadija Karanja- No appearanceMkamani advocate- We pray for 30 days stay of execution.Tribunal order- 30 days stay of execution granted.Hon. J. Mwatsama - Deputy Chairperson Signed 27. 6.2024