[2022] KECPT 135 (KLR)

Korinko v Metropolitan National Sacco Society Ltd (Tribunal Case 141 of 2021) [2022] KECPT 135 (KLR) (Civ) (17 February 2022) (Judgment)

Neutral citation: [2022] KECPT 135 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 141 of 2021

W.N Gichuki & B. Akusala, None

February 17, 2022

Between

David Saitoti Korinko

Claimant

and

Metropolitan National Sacco Society Ltd

Respondent

Judgment

1. The claim for determination was filed vide a Statement of Claim for determination is dated 10/11/20 and filed on 10/3/21. The Claimant avers he was a member no 12282 of the Respondent. He claims by a letter dated 20/19 he gave 60 days’ notice of his intention to withdraw from being a member of Respondent from 1/3/19. The Respondent has failed, refused or proved to remit the shares standing at Ksh. 306, 956/- as at 3/8/20 together with Claimant capital share of Kshs. 10,000/- dividend for the year 2020 of Kshs. 16,894/-.The prayers of the Claimant against Respondent thus are for;-a.The sum of Ksh. 333,850/-b.Interest at commercial rates of 18% from 20. 02. 2019 until judgment or at such rate and for such period as the court thinks fit;c.Costs of this suit.

2. The Respondent entered appearance and filed a Defence dated 16/4/21 to which they averred the Claimant was indeed their member vide membership No. 12282 and operating FOSA Account No. 395007. The Respondent denies receiving the withdrawal of membership and only knew of it when his advocate wrote a demand letter and thus monthly share contribution stopped as at February, 2019. The Respondent however aver the total recoverable is amount due Ksh. 113,554,68/- and not Ksh. 333,850/- as averred in the Statement of Claim.The Claimant savings was Ksh. 306,956/- and Claimant refunded into his account on 17/9/20 to which the Claimant has so far withdrawal a sum of Kshs. 200,000/-.The Respondent further avers Kshs. 10,000/- which is share capital is not refundable. Upon cessation of membership but transferable to another member. As per the Respondent 2019 Annual General Meeting resolutions members resolved and agreed to schedule refunds on a first come first serve basis.

3. The Claimant filed a reply to defence and denied Statement of Defence that the refundable deposit is Kshs. 113,554/ and not Ksh. 333,850/-. They further denied that in 2019 Annual General Meeting resolution schedule of refund was on a first come, first serve basis.Parties were directed to file written submissions on 14/10/21. Claimant filed their submissions dated 11/11/21. On 11/11/21 and Respondent filed their submissions dated 12/11/21 on even date.From the said documents and pleadings.

Issues for determination are;Issue OneWhether the Claimant is entitled for his refund from the Respondent?Issue TwoIf the issue number one is positive, how much is the Claimant entitled to?Issue ThreeCosts.

4. Issue OneWhether the Claimant is entitled for his refund from the Respondent?The Claimant’s case is that he was a member of Respondent and contributed shares culminating to Kshs. 333,850/-, this being inclusive of Ksh. 10,000/- share capital and year 2020 dividend of Kshs. 16,894/.As per the Claimant’s documents his Exh 3 Statement of Accounts shows the Claimant’s remittance of Kshs. 1,750. 00 from the year 2008 to 2013, Ksh. 2,000/- from July, 2013 through to 30/6/17 and Ksh. 3,000/- from July, 2017 – January, 2019. Based on their documents and all are indicated satisfied the Claimants made contributions to the Respondent. As regards refunds the Claimant did intact give a note to the Respondent. We are satisfied proper withdrawal notice was given.

5. Issue TwoIf the Issue Number One is positive, how much is the Claimant entitled to?We have further noted the averments of the Respondent in their Statement of Defence stated the Claimant’s account stood at Ksh. 306,956. 33 not Kshs. 333, 850/- as alluded and further amount of Ksh. 200,000/- was refunded into the Claimant’s account and a sum of Ksh. 113,554. 68 was the balance left to pay the Claimant and it is in the Claimant’s FOSA account and to be transferred to the Claimant’s personal bank account when the necessary application is made.The Statement of Account filed by the Respondent as at 16/4/21 shows balance of Claimant’s shares to be Ksh. 119,738. 49 while in their Statement of defence they allude the Claimant’s is entitled to Kshs. 113,554. 68. We find that the funds refundable to the Claimant is Kshs. 113,554. 68 as per the Supporting of Affidavit issued.The Claimants have not refuted claims that they withdraw Kshs. 100,000/- on 16/12/20 and another Ksh. 100,000/- on 7/4/21. We have the figure of Ksh. 119,738. 49 as what is being owed to the Claimant.There is no evidence of dividends paid for the years the Claimant is claiming thus the same fails.

6. Issue ThreeCosts.Costs follow the event costs awarded to Claimant.The upshot of the above is that the Tribunal enters judgment in favor of the Claimant against the Respondent for Kshs. 119,738. 49 with interest at Tribunal rates together with costs of the suit.Judgment, Prepared Read and Delivered on virtually this 17th day of February, 2022 with whom P. Gichuki and B. Akusala agree.

HON. MJENI MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 2.2022Gichuki Member Signed 17. 2.2022B. Akusala Member Signed 17. 2.2022In the presenceMs Kafafa for the ClaimantOchieng hold brief for Thimba for RespondentSignedHon. Mjeni MwatsamaDeputy Chairperson17/2/22Ochieng - We pray for 30 days Stay of Execution.Kafafa - We have no objection.Tribunal30 days Stay of Execution granted.SignedHon. Mjeni MwatsamaDeputy Chairperson