https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/231

Konditi v Actionaid Sacco Limited (Tribunal Case 748 of 2024) [2026] KECOPT 231 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KECOPT 231 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 748 of 2024 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 14, 2026 Between Naomi Konditi Claimant and Actionaid Sacco Limited Respondent Judgment 1.The Statement of Claim dated 1st October, 2024 was filed as a result of the Respondent’s failure to refund the Claimant her savings after resignation. According to the Claimant, she applied for an emergency loan of Kshs. 500,000/= around 26th April, 2024 which she needed for medical reasons, with the Respondent approving the loan but not disbursing the same leading to the Claimant withdrawing her membership from the Respondent. 2.It is the Claimant’s position that the by-laws of the Respondent are clear to the effect that upon resignation, a member is supposed to be paid their dues at the expiry of a 60 days’ notice, which never happened in her case despite the Respondent accepting her withdrawal. 3.That the failure of the Respondent in fulfilling its advertised promises and contractual obligations was a breach of duty of care and manifestation of gross professional negligence which caused the Claimant injuries as she had to borrow funds in an effort to stabilize her daily finances and meet her obligation to sick family members. 4.That the failure to disburse the emergency loan and or refund the savings in time caused the Claimant to take another loan from NCBA making her spend an additional Kshs. 97,162.84/= which she would not have incurred necessitating the filing of this suit for:a.General damages for professional negligence, fraudulent and illegal retention of the Claimant’s money, and unfair and unconscionable conductb.Special damages of Kshs. 97,162.84/= being the cost of the commercial loansc.Payment of Kshs. 370,210.61/= being member deposit of Kshs. 343,210.61/= and share capital of Kshs. 27,000/=d.Nominal damages for breach of contracte.Punitive damages for Respondent’s deliberately injurious, deceptive and misleading misrepresentationsf.Costs of the suitg.Interest on (a) to (f) until payment in full. 5.Despite service, the Respondent did not enter appearance or file a Statement of Defence leading the Claimant to apply for Judgement pursuant to Order 10 Rules 6 and 10 of the Civil Procedure Rules. Formal Proof Hearing 6.The Claimant testified among others that the Respondent has refused to pay her dues which constitute professional negligence on their part, and also that she has not received dividends. She also testified that at some point the Respondent deposited a sum of Kshs. 320,000/= into her personal account without any narration and she is unable to tell whether it was the refund amount of her savings or the loan that was approved but not disbursed. 7.The Claimant also testified that in as much as she had resigned from the Respondent, she attended their last AGM, with that AGM passing a schedule for dividends for the last financial year. 8.At the end of her testimony, the Claimant prayed that the Honourable Tribunal orders the Respondent to pay the balance of her savings which she quoted at Kshs. 50,000/=, unpaid dividends and the prayers listed in her Statement of Claim. Analysis and Determination 9.We have considered the Statement of Claim and the evidence adduced during the formal proof hearing, and the only question remaining for determination is as to whether on a balance of probabilities the Claimant has proved her case. Has the Claimant Proved her Case on a Balance of Probabilities? 10.Kimaru, J explained clearly what amounts to proof on a balance of probabilities in William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLE 526 by stating that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 11.The balance of probabilities test is applied to persuade the Honourable Court to conclude that something must have happened, if the Honourable Court has to make a choice between whether something happened or it did not happen. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 12.Balance of probabilities test is used in civil cases because the standard of proof is not so high as is demanded in criminal cases, neither is it so low to subject the Courts to ridicule. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:“Denning J, in Miller v Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say; - “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 13.This then, mean that this Honourable Tribunal has to determine on a balance of probabilities whether the Claimant resigned from the Respondent or not in 2023, when as late as 2025 she was still attending the Respondent’s Annual General Meetings (AGM). 14.Numerous Court cases in Kenya, mainly in employment, have stated clearly that in as much as resignation should be a final binding unilateral act that should take effect immediately upon communication, a party’s positive action or conduct can also be construed to have revoked their resignation, especially when the resignation act or decision was made under some special circumstances like on the background of undue intense pressure, or a ‘heat of the moment’ decision that some later action shows a change of mind. 15.In this particular case, first, we are not persuaded that the Claimant resigned, if she is also not very sure and certain whether the sum that was deposited into her personal account was the refund upon resignation, or the disbursement of the loan she had applied for. It is even more confusing, why a party who has resigned and no longer wants anything to do with another, will still attend that other party’s AGM and sit all through the proceedings to even know that dividends were declared at that AGM. 16.Second, the legal doctrine of estoppel prevents a person from contradicting their own previous actions, statements, or representations if another party has reasonably relied upon those previous actions, statements or representations to their detriment.For example, if the Respondent relied on the action of the Claimant of attending the AGM as a member, and was present when some resolutions were passed in that AGM, then the Claimant is estopped from taking a different position that when she attended the AGM she was not a member. If the Claimant was not a member of the Respondent as at the time of her attendance of the AGM, then we have to answer the following questions:i.The Claimant attended the AGM in what position?ii.If the Claimant was not a member at the time of the AGM, did she indicate her status or reasons why she logged in to follow the proceedingsiii.Apart from the Claimant, were there other non-members who also logged in and followed proceedings at the AGMiv.What was the reasonable expectation and understanding of the people who had logged in during the AGM. Were they aware non-members had also logged in with them?v.If resolutions were passed at the AGM while the Claimant was in attendance, should those resolutions be set aside as they were made with non-members in attendance?vi.Which one would be of greater prejudice between setting aside resolutions at an AGM because they were made with a non-member in attendance, or applying the doctrine of estoppel to prevent that one member from saying later that she attended but was not a member?vii.As a Tribunal, how do we justify general and special damages on the background that Claimant attended the AGM and followed the proceedings keenly like a member? 17.As a Tribunal we may not have conclusive answers to the questions we have raised above, but given the circumstances and background under which the Claimant resigned and the fact that she attended the Respondent’s AGM, as already explained above, we are persuaded that her actions can be construed as having revoked the resignation and she is still a member even today, and if she intends to resign from the Respondent, she has to start that process afresh. This in essence also mean that she can pursue and has a right to dividends, if any were declared - she has not presented or filed any evidence of declaration of dividends. 18.On a balance of probabilities, we have also considered the amount being claimed, how much has been paid, and how much should be paid to conclude the process of resignation. First, the amount being claimed has been presented as evidence through a screenshot attached to an advocate letter with no narration or statement of account or even a letterhead of the Respondent to persuade this Honourable Tribunal of its authenticity. Second, this Honourable Tribunal was made aware that some amount of what is being claimed was paid, but with no evidence to confirm how much was paid, or when it was paid. Third, the Claimant’s position at the formal proof hearing, was that apart from what was paid, she is still owed a balance of Kshs. 50,000/= which she did not explain how she got to that figure, given that the share capital is also still part of what she is claiming. Share capital is non-refundable and non-withdrawable, you can only sell yours to a new entrant in the society or to an existing member. Given that lack of clarity of how much was the Claimant’s savings, how much she has been paid, and how much she is owed currently, our advise is that she request the Respondent to make available to her a statement of account with all the details captured, to enable her or this Tribunal be aware through evidence on how much exactly is owed to her. 19.It is also important to comment on the issue of special damages of Kshs. 97,162.84/= as to whether we are persuaded that the Respondent should be ordered to pay the Claimant that sum. First, to try and find an answer to that question, we have explored several considerations including the message it will send to millions in the cooperative sector that if you apply for a loan in a Sacco and the same is not disbursed or approved, you can take another loan with a bank, with that Sacco condemned to pay the interest accrued from your loan. This in our humble opinion will open floodgates that may sound a death-knell to the collapse of the growth of the cooperative movement in Kenya. 20.Second, loan agreements are guided by certain legal principles like the privity of a contract. The doctrine of privity of a contract is clear to the effect that only parties directly involved in a contract, those who signed or agreed to it, can acquire rights or face obligations under it, and a third party cannot sue or be sued, even if the contract was created for their benefit. This in summary if we apply the facts of this case mean that the Respondent is a third party to the loan agreement between the Claimant and NCBA bank, and as such, neither the Claimant or NCBA bank can enforce or sue the Respondent for any term, performance or lack of performance of that loan agreement as they were not privy to it. Final Orders 21.The Statement of Claim dated 1st October, 2024 fails with no order as to costs. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 14.05.2026HON. BEATRICE SAWE MEMBER SIGNED 14.05.2026HON. FRIDAH LOTUIYA MEMBER SIGNED 14.05.2026HON. MICHAEL CHESIKAW MEMBER SIGNED 14.05.2026HON. PAUL AOL MEMBER SIGNED 14.05.2026Tribunal Clerk MutaiMakoriwa advocate for Claimant