[2024] KECPT 1523 (KLR)

Kimani v Metropolitan Sacco Society Limited (Tribunal Case 160 (E256) of 2023) [2024] KECPT 1523 (KLR) (26 September 2024) (Judgment)

Neutral citation: [2024] KECPT 1523 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 160 (E256) of 2023

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

September 26, 2024

Between

Alice Wambui Kimani

Claimant

and

Metropolitan Sacco Society Limited

Respondent

Judgment

1. The claim herein was brought to the Tribunal by the Claimant vide Statement of Claim dated 10th March, 2023, accompanied by the Verifying Affidavit, Claimant’s List of Documents and Claimant’s List of Witnesses, all of even date.The claimant ‘ s claim is that on or about 27th July, 2020, she wrote to the Respondent expressing her wish to withdrawal from the membership of the Respondent and seeking refund of her shares, having contributed the sum of Kshs. 275,500/= in deposits that despite in demanding and prevailing on the Respondent from the time she left membership, the Respondent failed to settle the refund, that the Claimant prays for judgment against the Respondent for:a.The sum of Kshs. 277,500/= being share contributions.b.Costs of the suit and interest until payment in full.c.Any other relief so deemed appropriate by the Honourable Tribunal.

2. The Respondent responded to the Statement of Claim vide a Statement of Defence dated 13th April, 2024 filed on 30th May 2023 accompanied by the Respondent’s List of Documents of even date.

3. In response to the claim, the Respondent states that the Claimant was a member number 12407 operating Fosa Account number 0000193001 and was making monthly deposit contributions that however the Respondent did nto receive a withdrawal letter from the Claimant alleges that the Claimant’s alleged withdrawal letter is not stamped an indication that the same was not received; that as per the 2022 Annual General Meeting resolution by the General Assembly members resolved and agreed to schedule refunds after two years due to the liquidity challenges facing the Respondent.

4. Further, the Respondent denies that the claimant’s pursuit of her refunds fell on deaf ears; that it operates member’s accounts diligently in accordance with the customs and practices of banking as provided in law hence cannot engage in negligence or malicious retention of member’s funds upon issuance of a notice of cessation of membership or upon demand of the same; that the claimant’s refund has to be put in abeyance in accordance with the above mentioned 2022 Annual General Meeting resolutions, which were passed in the said binding to the Claimant. The Respondent consequently prays that the Claimant’s suit against it be dismissed with costs.

5. The parties were directed to proceed with the hearing of the case by way of written submissions.

6. The Claimant’s written submissions dated 5th May, 2024 was filed on 6th May 2024. As at the date of writing this judgment, the Respondent had filed written submissions.Claimant’s CaseThe Claimant’s submitted that the Claimant and the Respondent are in agreement on the following:a.The Claimant was a member of the Respondent issued with member number 12407. b.The Claimant did monthly contributions.c.The Respondent did default in executing its obligations on refund .d.The Respondent’s debt to the Claimant is not disputed in the Respondent’s Statement of Defence.

7. Further, the Claimant raises several issues for determination:a.Whether the amount owed by the Respondent is Kshs. 277,500/= as contained in the Statement of Claim.b.Whether the purported Annual General Meeting resolutions without amending the substantive by-laws has any bearing as far as the provisions o refund after 60 days upon issue of notice?c.Is it possible for the Respondent to schedule refund of the Claimant’s contributions of indeed they never received withdrawal letter.?d.When is the Claimant’s refund due and owing from the Respondent ?e.Who should meet the costs of the suit?

8. The Claimant’s submissions are that the Respondent ignored the Claimant’s notice of withdrawal notice; that the Claimant filed the resignation from provided by the Sacco on 27th July 2020; that the Respondent’s allegation that the notice letters are not stamped is a scheme to deny the claimant’s hard-earned contributions, that as per the by laws , one is deemed to have resigned if no contributions are made in continuous six months and a refund should follow the cause; that it is the sacco which instructs a claimant’s employer on deductions and stoppage of deduction thus allegations that the Respondent never received the Claimant’s withdrawal notice is not true because they stopped deducting shares from salary.

9. It is the claimant’s position that entitled to her refund as proved by the entries made in the Claimant’s statement of Kshs. 277,500/= and that the same is not denied or controverted by the Respondent; that the by-laws provide for refund on cessation of membership and that there is no provision in the by-laws to have refund be staggered beyond the period provided unless through a valid court order and/or amendment of the by-laws.

10. On who should pay costs of suit, the claimant having demonstrated that the Respondent failed to perform, its obligations of refund of shares, it is just that costs of the suit be borne by the Respondent plus interest.

Analysis and Determination 11. We have considered the pleadings and documents filed by the parties and the submissions of the Claimant and find that:a.It is not in dispute that the Claimant was a member of the Respondent, neither is it in dispute that the Claimant had balance of the sum of Kshs. 277,500/= as at 20. 4.2022 the same being evident from the unrefuted member statement produced by the Claimant.b.From the member statement, it is evident that as at 27. 1.2022, the Claimant’s balance was Kshs. 397,200/= which amount continued to reduce on account of refund until 20. 4.2022 when it stood at Kshs. 277,500/= pointing to us that indeed the Claimant had sought refund of the deposits.c.There is no evidence produced by the Respondent to prove that there was a resolution of members in an Annual General Meeting to stop all payments of refunds in the year 2022, as alleged.In the upshot, we find the Claimant’s claim to be merited and hereby enter judgment in favour of the Claimant against the Respondent in the sum of Kshs. 277,500/= with costs of suit and interest at Tribunal rates until payment in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024Tribunal Clerk MutaiAlice Wambui Kimani- PresentMetropolitan Sacco – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024