[2023] KECPT 754 (KLR)

Kariuki v Ellams Co-op. Savings and Credit Society (Tribunal Case 193 of 2019) [2023] KECPT 754 (KLR) (Civ) (21 September 2023) (Judgment)

Neutral citation: [2023] KECPT 754 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 193 of 2019

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

September 21, 2023

Between

Peter Kariuki

Claimant

and

Ellams Co-op. Savings and Credit Society

Respondent

Judgment

1. The matter for determination is a statement of claim dated March 22, 2019and filed on March 29, 2020. In the statement of claim, the claimant is instituting a claim against the respondent for a refund of shares and service fees which were allegedly deducted by the respondent to cover a loan that was, according to the claimant was to be repaid by an insurance company. The claimant alleges that the agreement between KUSCO insurance and the respondent was that KUSCO was to cover any outstanding debts in case of any accident while at work. The claimant claims that he resigned under a medical condition.

2. The Statement of Claim was accompanied by the claimant's list of documents that included a resignation letter, a letter from Ellams Ltd, a letter from Nairobi West Hospital, Debit notes from KUSCO, and a blank Risk Management Agreement.

3. In their Defence, the respondent only addresses the issue of the loan and does not say anything about the liability or otherwise of KUSCO Sacco.

4. The matter then proceeded to hearing on 21. 6.2023 where the claimant produced the documents and his Witness Statement dated 22. 1.2023 which was adopted as Evidence in Chief. The respondent did not appear during the hearing, and neither did they file a witness statement. The claimant reiterated what is in his Statement of Claim, and prayed this court to order the respondent to refund his money.

Analysis 5. It is not disputed that the claimant was a member of the respondent. It is also not disputed that the claimant had a loan with the respondent, and further it is not disputed that the claimant was let go on medical grounds that the chemicals affected his respiratory system and eyesight. The question before this Tribunal is who bears the responsibility for the loan that the claimant took from the respondent, and that was due at the point of his exit in the respondent. The respondent did not put in a Witness Statement, and neither did they call witnesses to testify during the hearing nor attend the hearing to controvert the evidence of the claimant.The question before us therefore is whether the claimant has proved his case. That there was a loan protection cover at the time of his exit, and whether the cover covers the circumstances surrounding his resignation. From his documents, the claimant has produced debit notes for premium charged by KUSCO on Ellams for both loan cover and in case of death. The relevant Debit note for this matter would be one covering the period the claimant claims to have resigned, the year 2018, and the same is missing from the claimant’s List of Documents. The claimant has also produced a blank Risk Management Agreement by KUSCO Sacco. The form seems to be the form that KUSCO would sign when entering into a Risk management contract with a Sacco. Since the form is blank, this Tribunal cannot deduce anything from it.

6. A claimant is under a duty to prove his case and convince this Tribunal on a balance of probabilities, of his claims. The present claim, rests upon an alleged contract between the respondent and KUSCO Sacco. In the case of National Bank of Kenya Ltd vs Pipeplastic Sankolit (K) Ltd. Civil Appeal No. 95 of 1999, it was held that:“a Court of law cannot rewrite a contract with regard to interest as the parties are bound by the terms of their contract.”Similarly, we find that the claimant has not provided enough evidence to show that indeed there was a Risk Management Agreement between KUSCO and the respondent at the time of his resignation. The claimant produced a blank form and it is not for this Tribunal to fill the form for the parties. We will not go into the details of the form, and clause 8 that the claimant has referred to as protecting him, for this very reason that this Tribunal cannot presume the parties to this Risk Management Agreement.

7. The Upshot of the foregoing is that the claimant has failed to prove his case to the required standard of proof being on a balance of probabilities. Consequently, we find that the claim dated March 22, 2019is not merited and the same is hereby dismissed entirely with no orders as to costs

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 21. 9.2023Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023Hon. Beatrice Sawe Member Signed 21. 9.2023Hon. Fridah Lotuiya Member Signed 21. 9.2023Hon. Philip Gichuki Member Signed 21. 9.2023Hon. Michael Chesikaw Member Signed 21. 9.2023Hon. Paul Aol Member Signed 21. 9.2023Tribunal Clerk JonahPeter Kariuki Presentclaimant in personI served respondent with today’s date.Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023