[2021] KECPT 26 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 122 OF 2020

KEZZIAH KANINI MUTHARA...........................................................CLAIMANT

-VERSUS-

METROPOLITAN NATIONAL SOCIETY SACCO LTD............RESPONDENT

JUDGMENT

1. This Claim was instituted by way of a Statement of Claim dated 3rd March, 2020. The Claimant alleges that she issued a Notice of withdrawal of membership to the Respondent, and further sought a refund of her savings, totalling to Kshs. 309,650/=, together with costs and interests. Annexed thereto is a letter dated 16th September 2019, from the Claimant to the Respondent, wherein the Claimant was applying for a refund of all her shares in full. There is also a demand letter dated 23rd January 2020. The Claimant contends that the Respondent has refused to refund her share contributions, even after issuing proper notice.

2. The Respondents filed a Statement of Defence, dated 15th August 2020, where they admitted to owing the Claimant Kshs. 301,218/=, arguing that the remaining amount consists of share capital, which is non-refundable. The Respondent further avers that they have promised to refund the Claimant on 19th November 2021. The Respondent further posits that there was an Annual General Meeting in 2019 wherein the members of the Respondent resolved to schedule the funds on a first-come-first-served basis, and the Claimant’s refund was behind other repayments. No copy of the minutes of the said meeting has been furnished to this Tribunal.

3. The parties proceeded by way of written Submissions, which we have carefully considered. We find that the following are the issues needful of determination:

ISSUES FOR DETERMINATION:

The following are the issues that this Tribunal finds necessary for Determination:

(a)Whether the Claimant issued a proper Notice of withdrawal from the SACCO;

(b)Whether the Respondent is entitled to a refund of Kshs. 309,650/=;

(c)Whether the timeframe for refund issued by the Respondent is reasonable; and

(d)Who bears the costs of the suit?

We shall hereafter analyse the issues as follows:

4. ANALYSIS OF ISSUES

(i) Whether the Claimant issued a proper Notice of withdrawal from the SACCO

From the evidence on record, we note that the Claimant did properly withdraw from the Respondent, and issued a letter dated 16th September 2019for a refund of her savings formally. This letter was received on 18th September 2019 by the Respondent. The Respondent has not produced anything to show that there is a standard format for notice of withdrawal from the SACCO, and as such, the said letter by the Claimant constitutes a proper Notice of Withdrawal and request for refund.

(ii) Whether the Respondent is entitled to a refund of 309,650/=

The Respondent has not pleaded any liability on the part of the Claimant in terms of loans and guarantees to other members. The Respondent has, however, admitted to owing the Claimant Kshs. 301,218/=.On this premise, we first invoke the provisions ofOrder 13 Rule 2of theCivil Procedure Rules 2010, and accordingly enter a partial judgment on the admitted sum of Kshs. 301,218/=.

The balance of Kshs. 8,432/= is the contested amount, that forms the basis of this part. On their part, the Respondents argue that this amount consist of share capital, which is non-refundable. This Tribunal has been invited to assume this fact, as there was no proof of this provision in the SACCO’s bylaws.

Section 107(1) of the Evidence Act Cap 80 of the Laws of Kenya casts the burden of proving a fact on the one that alleges. This burden has not been discharged by the Respondent in view of the disputed amount, and it must thus fail. We therefore find and do hold in favour of the Claimant that she is entitled to her full deposit of Kshs. 309,650/=.

(iii) Whether the timeframe for refund issued by the Respondent is reasonable

The Respondent further avers that, via a letter dated 20th July 2020, they have promised to refund the Claimant on 19th November 2021. The Respondent further posits that there was an Annual General Meeting in 2019 wherein the members of the Respondent resolved to schedule the funds on a first-come-first-served basis, and the Claimant’s refund was behind other repayments.

The timeframe of more than one year to refund a member of her savings is unreasonable. No justification has been given for this extended period. Again, the Respondent has refused to furnish proof of the said 2019 Annual General Meeting, and as such, this argument is unsubstantiated. This Tribunal shall not be invited to determine cases on the basis of conjecture and rumours. This argument thus fails.

(iv) Who bears the costs of the suit?

The position of the law, and this Tribunal is bound therewith, is that costs follow the event. Section 27(1) of the Civil Procedure Act bestows this Tribunal with discretion to apportion costs, and on the basis of the foregoing, we find that the Claimant is entitled thereto, and we thus so order.

We therefore proceed to issue the following Orders:

ORDERS

(a) The Claimant’s Statement of Claim dated 3rd March 2020 succeeds;

(b) Judgment be and is hereby entered for the Claimant, for Kshs. 309,650/= together with costs and interest at Tribunal rates.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2021.

Hon. B. Kimemia Chairperson Signed 4. 11. 2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021

Mr. Gitonga Kamiti Member Signed 4. 11. 2021

Mr. B. Akusala Member Signed 4. 11. 2021

Mr. P. Gichuki Member Signed 4. 11. 2021

Tribunal Clerk R. Leweri

Ochieng holding brief for Thimba for the Respondent

Njenga for the Claimant

Ochieng –We request for 30 days stay of execution.

Njenga –We are opposed to the application for stay of execution. We request the Respondent’s Advocates to file a formal application for stay.

Tribunal –30 days stay of execution granted.

Hon. J. Mwatsama Deputy Chairperson Signed 4. 11. 2021