[2023] KECPT 829 (KLR)

Kinyua v Semeka Co-operative Savings and Credit Society Ltd (Tribunal Case 199 (E227) of 2022) [2023] KECPT 829 (KLR) (31 August 2023) (Ruling)

Neutral citation: [2023] KECPT 829 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 199 (E227) of 2022

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

August 31, 2023

Between

Patrick Mukundi Kinyua

Claimant

and

Semeka Co-operative Savings and Credit Society Ltd

Respondent

Ruling

Background 1. The Claimant is/was a member of the Respondent who allowed her members to accumulate savings and deposits through the operation of public service vehicles owned by the members. The vehicles ply Nairobi, Machakos, Wote, Kibwezi, Mtito Andei, Voi, and Mombasa routes.

2. On 27th August 2021, the Claimant together with 10 members wrote a letter to the Chairman of the Sacco to withdraw their membership.

3. In response, the Chairman responded to the Claimant that he should formalize his withdrawal from the Sacco to enable the Sacco to process his deposit refund.

4. In compliance the Claimant wrote a personal withdrawal letter dated 27th September 2021The deposit refund was not effected thus necessitating the filing of this claim in the Tribunal.

5. Subsequently a Statement of Claim dated 10th March 2022 was filed by the Claimant on 31st March and sought for:i.A judgment to be entered for a sum of Kshs 118,200/= together with interest at 14% per annum from 1st September 2021ii.Costs of the Claim and interest from the date of judgment until payment is made in full.

6. In accompaniment, the Claimant filed Verifying Affidavit and List of Documents which were later served upon M/S Chimei & to Advocates by a Process Server and filed an Affidavit of Service dated 20th April 2022.

7. In Defence, the Respondent filed a Statement of Defence dated 14th April 2022 on 15th June 2022 and cited a case of fraudulent transfer of a motor vehicle from the Respondent’s NTSA Portal without formal Application to the management which was attributed to the Claimant jointly and or severally with his other colleagues

8. The Respondent therefore filed a Counter-Claim against the Claimant with particular reference to the claim of fraud and prayed for:i.A finding be established that the acts of the Claimant jointly and or severally are unlawful and illegalii.Damages for (i) above

9. The Claimant responded to the Respondent’s Statement of Defence and the Counter-claim

10. On 21st October 2021, the Respondent prepared and posted what they called “group withdrawal accounts’’ for the 10 members who had earlier written a withdrawal letter to the chairman dated 27th August 2021.

11. That in the Group Withdrawal Accounts Statement and the refund summary as of 30th September 2021 the Respondent showed that the Claimant was owed Kshs 54,400/=.

12. This prompted the Claimant to file a Notice of Motion with a Supporting Affidavit and prayed for judgment against the Respondent for the admitted sum of Kshs 54,400/= while the remaining balance to proceed to a full hearing.

13. The Tribunal ordered the parties to canvass the matter through written submissions which were compiled by the Claimant via written submissions dated 30th January 2023 and filed on 17th February 2023. While the Respondent’s written submissions were dated 15th March 2023.

Issues for Determination(i)Is the Respondent’s Group Withdrawal Accounts Statement showing Net Refund (Deposits) total dues of Kshs 54,400/= against the name of the Claimant on admission which warrants judgment on admission to be issued?(ii)Who bears the cost of this Application?

Analysis 14. Although the provisions of Order 13 Rule (2) are noticeably clear on the Application for Judgment on Admission the power to enter judgment on admission is not mandatory or peremptory to the court but discretionary. This was the holding of the court in the case of Express Automobiles (K) Ltd. v Kenya Farmers Association Ltd. &another in which the same court stated that an admission should reflect a conscious and deliberate act of the person making it showing an intention to be bound by it….-it therefore follows that unless the admission is clear, unambiguous, unequivocal, and/or unconstitutional, the discretion of the court should not be exercised to deny the valuable right of a sued party to contest the claim.

15. The amounts shown in the Respondent’s Group Withdrawal Accounts is a table of details of the accounts of each of the ten (10) members who had earlier signed a withdrawal letter which cannot be said to be plain and unequivocal because it may be prepared by the Office Manager for reconciliation purposes or for the Respondents board consideration. The report does not amount to an admission.

16. Further, we did not find an express admission letter and/or exchange of correspondence between the Respondent and the Claimant that the Kshs 54,400/= should be refunded to the Claimant. This goes against the decision of the court in the case of CassamvSachania 1982 KLR in which the court held that the discretion to grant judgment on admission is to be exercised only in plain cases where admission of fact is so clear and unequivocal that the same amount to an admission of liability which entitles the Plaintiff to a Judgment.

17. We find that the Group Withdraw Accounts leaves room for doubt as to the purpose of its preparation, hence pour some cold water on the face of an admission. This would go contrary to the holding of the case of Momanyi v Hatimy & another (2003) eKLR in which the court made it clear that admission should be obvious on the face thereof and should leave no room for doubt.1. We find that the Application dated 28. 7.2022 has no merits. The same is dismissed with costs in the cause.2. We order for the parties to file all their Witness Statements and documents within 14 days herein.3. Mention for Pre-trial directions on 19. 10. 2023. 4.Orders to apply to E228/200 of 2022 and E226/198 of 2022.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. .....................HON. BEATRICE KIMEMIACHAIRPERSON.....................HON. J MWATSAMADEPUTY CHAIRPERSON.....................HON. BEATRICE SAWEMEMBER.....................HON. FRIDAH LOTUIYAMEMBER.....................HON. PHILIP GICHUKIMEMBER.....................HON. MICHAEL CHESIKAWMEMBER.....................HON. PAUL AOLMEMBERTribunal Clerk JemimahAuga for Claimant/ApplicantNo appearance for Respondent