[2024] KECPT 217 (KLR)

Kiema v NHIF Sacco Society Ltd (Tribunal Case 1005/ E1017 of 2022) [2024] KECPT 217 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 217 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1005/ E1017 of 2022

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

March 7, 2024

Between

Loise Kutula Kiema

Claimant

and

NHIF Sacco Society Ltd

Respondent

Judgment

Claimant’s Case. 1. The Claimant’s case is based on the Statement of Claim dated 2/12/2022, Claimant’s Documents dated 2/12/2022, Claimant’s Witness Statement dated 2/12/2022, Reply to Statement of Defence dated 18/4/2023 and Claimant’s Written Submissions dated 7/8/2023.

2. In her Statement of Claim, the Claimant states that she is a member of the Respondent member no 01102 and made monthly deposits to the Respondent on 12/10/2017. The Claimant sought to voluntarily withdraw from the Respondent. She states that the deductions were stopped in January 2018 but the Respondent has refused and/or neglected to refund the deposits and savings.She states that she is claiming ksh 404,000/= and dividends of 2022 among other claims as per her statement of Claim.

3. In her Witness Statement, the Claimant confirms states that she continues to suffer despite having saved with the Respondent.She states that she has no other liabilities with the Respondent either by way of loans or guarantee.The Claimant vide her letter of 2/12/2022 has attached documents to support her Claim. Among the relevant documents attached are the Letter of Withdrawal dated 12/10/2017 and Claimant’s pay slips for the period June 2012 and January 2018. The filed pay slips show the amount saved by the Claimant and her loan position.

4. During the hearing of this case on 17/7/2023, the court directed that since it is a refund case, parties were to file Written Submissions.In the Written Submissions dated 7/8/2023, the Clamant has provided a background of the Claim by stating the Claimant membership, her deposits/ savings, the notice of withdrawal and subsequent failure of the Respondent to refund her deposits/ savings.The Claimant has analyzed the case in terms of: -a.Whether the Claimant is entitled to the ksh 404,000/= Claim.b.Whether the Claimant is entitled to dividends.As for the Claim of ksh 404,000/= the Claimant has provided evidence to that effort. As for the issue of dividends, the Claimant cites Regulation 23(7) of the Sacco Societies Regulations 2020 to support her case.The Claimant submits that she is entitled to the ksh 404,000/= dividends for the specified years and interest and costs of the suit.

Respondent’s Case. 5. The Respondent’s case is based on the following documents:Respondent’s Statement of Defence dated 23/3/2023, List of Documents dated 18. 7.2023. In the Respondent’s Statement of Defence, the Respondent admits that the Claimant was a member of the Respondent but denies the Claim as regards amount of deposits, interest claimed and that the Claimant did not have liabilities with the Respondent. The Respondent denies receiving a notice to sue.

6. The Respondent has attached the following documents to support its case vide letter 18/7/2023a.Balance sheet of final account as at 31/12/2022. b.Balance sheet of final Account as at 31/12/2021. During the hearing, the court directed that the matter will be dispensed through Written Submissions.At the time of Writing this judgement, the Respondents Submissions were not in the court file despite the Respondent being given a last chance on 10/11/2023 to file the same without fail.

Analysis 7. This is a Claim on refund of deposits/ shares. The Claimant has produced pay slips indicating the amount of deposits held with the Respondent. The same pay slips show the loan status, with the loan column reflecting nil balance.The Claimant has also provided evidence that she indeed wrote to the Respondent vide her letter dated 12/10/2017. A further deemed letter dated 24/8/2022 from the Claimant’s Advocate is provided to support the Claim.The Defendant has admitted that the Claimant was a member of the Respondent. What they deny is the amount claimed in form of deposits/ shares, dividends and interest. They have however not provided evidence to disapprove the Claim figures. As regards the Claim on refund of deposits/shares, the Claimant has adequately persecuted her case.As regards Claim on dividends for the years 2018 to 2022, the Claimant has not produced evidence to support this Claim.However, the Respondent has produced Balance sheets and final accounts for the years ending 31/12/2022 and 31/12/2021 which do not reflect any dividends payable to members.

Conclusion.This court is convinced on a balance of probabilities that the Claimant has provided enough evidence to prove that she was a member of the Respondent and that she wrote a letter of withdrawal. She has not provided adequate evidence to support her Claim on dividends for the period 2018 to 2022. Again the Balance sheets and final Accounts for the year 2021 and 2022 as ordered by the court do not prove that there were any dividends declared by the Respondent.In view of the above, this court enters judgement in favor of the Claimant against the Respondent for:a.The sum of ksh 404,000/= being share deposits as at December 2017. b.Prayer of dividends of Claimant’s shares in the Respondent for the years 2018 to 2022, fails.c.Compound interest on (a) and (b) from January 2018, fails.d.Plus costs and interest in the claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahNo appearance by parties.Judgment Delivered.HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024