[2023] KECPT 816 (KLR)

Keana v Bob Morgan Sacco (Tribunal Case 657 of 2019) [2023] KECPT 816 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 816 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 657 of 2019

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

August 31, 2023

Between

Lennard Onseri Keana

Plaintiff

and

Bob Morgan Sacco

Defendant

Judgment

1. The matter for determination is a Plaint filed on 24th October 2019 dated 7th October 2019. The same is supported by a Verifying Affidavit sworn on 7th October 2019 and filed on 24th October 2019 seeking the following reliefs:a.Payment of Ksh 135,542/= being the Sacco contributionsb.Interest at court rates on (a) above from the date of filing this suit until payment in full.c.Costs of the suitThe Plaintiff also filed a witness statement on 24th October 2019 dated 7th October 2019 acknowledging himself as the plaintiff and that he was employed as a driver of Bob Morgan Security from August 2008 to August 2018 where he wrote his resignation letter upon which he received a letter dated 15th October 2018 acknowledging the same. He then gave a three-month notice of withdrawal from the Sacco as of 28th November 2019 but has not been successful in claiming the refunds.Further, the Plaintiff also filed a list of documents on 24 October 2019 that detailed:1. Copy of Plaintiff’s resignation letter2. Copy of letter acknowledging resignation3. Copy of payslip4. Copy of a notice of withdrawal5. Copy of the demand letter

2. Defendant filed a Statement of Defense dated 6th November 2019 filed on 13th November 2019. It admits that Plaintiff was a member of its Sacco but has never served it with a notice of withdrawal of the Sacco nor a demand for a refund of shares. The Respondent also disputes owning the Claimant the alleged sum of Ksh 135,542/= and puts the Claimant into strict proof. Further, it contends that the claim is premature and does not lie with costs and thus ought to be dismissed with costs. Additionally, it avers that with proper notice, it would settle the Claimant’s claim.

3. Being a claim of refunds, parties were directed to file written submissions to dispose of the claim.

Claimant’s Submission 4. The Claimant has intended to establish that he issued a notice of withdrawal from the Sacco and that he is entitled to the sum sought of Ksh 135, 542/= sought in the plaint as well as to the suit. The Claimant remains at it that he gave the Respondent a 3-month notice and that he had over 1000 shares valued at Ksh 135,542/= as sought in the Plaint.

Issues for Determinationa.Whether the Claimant owes the Respondent the alleged sumb.Whether the claim made by the Claimant is prematurec.Whether the Claimant served the Respondent with the issue of withdrawal.

Issue One a. Whether the Claimant owes the Respondent the alleged sum 5. A payslip is attached by the Claimant dated September 2018 that shows that from deductions, there are some monthly deductions. S.25 of the Co-operative Society Act requires societies to keep track of all money received from its members this is however much the Respondent disputes owing the alleged sum. As of 28 November 2018, the Claimant wrote to the Respondent requesting a refund but was not accredited, in as much as to the agreement that stipulated monthly deductions were added to the contributions, hence, this establishes a prima facie case.

Issue Two b. Whether the claim made by the Claimant is premature 6. Paragraph 5 of the Statement of Defence states that the claim made by the Claimant is premature and does not align with the law.

7. This issue brings a description that the Claimant did not fulfill all obligations or thresholds to ensure that the Respondent was in a position to refund the alleged claim.

8. However, the fabric of this is that the Claimant resigned from employment via a resignation letter which systematically brought forth the argument of refund of the liquidated shared carried upon.

Issue Three c. Whether the Claimant served the Respondent a withdrawal letter? 9. The Plaintiff’s list of documents contends a notice of withdrawal which is about resignation from employment as a driver dated 15th October 2018 via a letter to the Human Resource Manager of the Respondent’s Society.

10. Herein, the notice of resignation was duly filled by the by-laws by giving the employee 30 days’ notice. However, the Claimant had 65 days of leave under which the days’ notice will thus be offset and the balance of 35 days be paid with final dues. Herein, it stipulates that the issue of withdrawal is served with the letter of resignation from employment.

Analysis 11. The fact of the letter dated 28Th November 2018 is that the claimant’s intention of withdrawing from the Sacco would thus mean the withdrawal of the shares. This is in contrast to the Respondent’s putting that the Respondent’s claim is premature. Additionally, the Human Resources of Sacco acknowledged affirmations pro bare as shown in the annexed copy of the pay slip on the third page of the plaintiff’s list of the bundle.

12. On the first issue, the Civil Procedure Rules Order 2 Rule 15 outlines the grounds for striking out pleadings. Order 2 Rule 15 (b) indicates that the court may strike out pleadings if it is scandalous, frivolous, or vexatious. In Madison Insurance Company v Augustine Kamanda Gitau (2020) eKLR the courts labored on the definitions of scandalous, frivolous, or vexatious and established that a matter is vexatious, inter aria other reasons, it has no chance of succeeding and where it is hopeless. It is rendered further frivolous if when is put up on Defence, it will be wasting the court’s time.

13. The Tribunal commits that issue one tick on being frivolous and vexatious. The Respondent denies owing the Claimant the alleged sum despite making the Claimant subscribe to the Sacco and deduct monthly contributions of the shares which can be withdrawn from resignation or upon request which the Claimant duly paid.

14. On the second issue, the Claimant had 35 leave days as indicated on the pay slip and this necessitates that the leave days can offset the required 60 days from the notification of the Respondent. This was duly done by the Claimant through a letter to the Human Resource

15. On the third issue, the Claimant provided a determination to resign from the Sacco and thus channeling indication to withdraw the shares. Additionally, the letter dated 11th June 2019 is a notice of withdrawal which showcases that the Claimant has been requesting for withdrawal of shares to no avail. This issue can be said to be vexatious and thus wasting the court’s time.

Upshot 16. Judgment is entered in favor of the Claimant against the Respondent for Ksh 135,542/= plus the cost and interest of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHLutukai advocate for the Claimant.No appearance by RespondentJudgment as read out on 31. 8.2023HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023