[2025] KECPT 119 (KLR)

Kwobo v Bob Morgan Sacco Society Limited (Tribunal Case 1025/E880 of 2022) [2025] KECPT 119 (KLR) (30 January 2025) (Judgment)

Neutral citation: [2025] KECPT 119 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1025/E880 of 2022

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

January 30, 2025

Between

Peter Wafula Kwobo

Claimant

and

Bob Morgan Sacco Society Limited

Respondent

Judgment

1. The facts giving rise to this suit emanate from a Statement of Claim dated 20th September, 2022 which was filed by the Claimant on 3/7/2023 seeking for refund of Kshs. 100,230/= plus cost and interest from the Respondent.

2. A verifying Affidavit a witness statement sworn by Peter Wafula Kwobo, a List of 4 documents all dated 20th September, 2022 and all filed on 3/7/2023 were attacked to support the claim.

3. Having been served with the statement of claim together with the annexures by the Claimant the Respondent filed a Statement of Defence and disputed owing the Claimant Kshs. 187,000/= as pleaded.To support the Defence, the Respondent filed a Witness Statement, List of Witnesses and a List of Documents all dated 18th October, 2024 but filed on 16/1/2025. Together with those, a member Statement Account of the Claimant held by the Respondent was attached.

4. The Tribunal set the matter for pre-trial directions on 4/9/2024 where the parties agreed that some the claim was for refund of deposits/savings, the matter be canvassed by the way written submissions. The Tribunal directed the Claimant to file and serve their written submissions upon the Respondents within 14 days, similarly the Respondent were granted 14 days to file and serve their written submissions up on the Claimants within 14 days from date of service by the Claimants.

5. On 16/10/2023 during mention, the Claimants confirmed that they had filed and served their written submissions dated 9/10/2024 on 19/1/2025. However, the Respondent Advocate was not present during the mention but they filed their written submissions dated 18/10/2024 on 10/1/2025.

6. Having read though the Claimants statement of claim, the set of documents and the written submissions, the summary of their case is as follows: -

Claimant’s Case 7. Until sometimes in August/September 2020, the Claimant was a member of the Respondent during which time he was contributing Kshs.700/= per month as deposit/savings or shares in the Respondent refunded him some amount which left a balance of Kshs. 100,230/=.

The Respondents Case 8. The Respondent filed a Statement of Defence dated 21/7/2023, a witness statement, a List of Witness and a List of Documents all dated 18/10/2024. The Respondent confirmed that the Claimant was their member No. 502-205109 but disputed owing the Claimant the sum of Kshs. 187,00/= on account of shares and if there is any amount in the Claimants account, the same is subject to clearance against any loan guarantors or outstanding loans. Mr. Bernard Musembi who is the accountant of the Respondent stated in his witness statement that the member statement account held by the Respondent show that as at 13th October, 2021, the Claimant had loans which was granted to him. Further he stated that Kshs. 1,000/= should be deducted from the Kshs. 34,530/= nonrefundable membership fee leaving a balance of Kshs. 33,530/=. The Respondent witness concluded by urging the Tribunal to enter judgement for Kshs.33,530/= in favour of the Claimant.

Analysis And Determination 9. It is not in dispute that the Claimant was a member of the Respondent and that his employer submitted deductions of his savings through a cheque off system to the Respondent. This information is indicated by the credits of Kshs.700/= per month in the member statement dated 16/10/2024 and the various Claimants pay slips listed in the Claimant’s list of documents.

10. The Claimant in his written submissions under paragraph 3 state that from 2nd March, 2011 up to 31st August, 2020 his pay slip indicate that he had saved Kshs. 187,000/= and in paragraph 4 he submits that he was refunded some amount leaving a balance of Kshs.100,230/=.On examination of the pay slip attached we note that the amount of the Co-operative shares indicate figure of Kshs. 186,700/= and moreover, the Claimant does not indicate how /method he was being refunded the amount that he admits that he was paid.

11. Further the pay slip that the Claimant relies on is a document that was generated by his employer but not the SACCO. The employer of the Claimant is different entity from the SACCO. The employer of the Claimant is a different entity from the SACCO and that the Tribunal does not rely on pay slips but on a member’s statement account which gives clear picture of the member dealings with the SACCO.

12. There is nothing on record to show that the Claimant withdraw from the SACCO and the member Statement Account show that as at 31st August, 2021, his account was active yet he was dismissed from employment vide a letter dated 31st August, 2020. This qualifies the Respondent’s submission that the termination of the Claimant from employment did not stop the Claimant from having dealings with the SACCO.

13. We note that the Claimant admitted under paragraph 4 of his W/Sub that he was paid some amount which left a balance of Kshs.100,230/= specifically he stated this:-“Despite making several demands a paltry amount was refunded but the balance of Kshs.100,230/= remain unsettled”.Upon examinations of the member statement account we not that as at 9th June, 2020, the balance on the Claimants’ account was Kshs.187,800/= and the Respondents made refunds to the Claimant on the following dates:-31st August, 2020 Kshs. 2,12031st August, 2020 Kshs.106,0009th August, 2021 Kshs. 26,8009th August, 2021 Kshs. 10,30013th October, 2021 Kshs. 8,000Total refunds Kshs.153,270Therefore, Kshs. 187,800- Kshs.153,270≈Kshs. 34,530/=

14. Therefore, the amount due to the Claimant is Kshs.34,520/= less the Kshs.1,000/= being the non-refundable membership fees. This leave a balance of Kshs.33,520/=.This is the amount that the Respondent admitted owing the Claimant.

15. Order 13 Rule 2 of the Civil Procedure Rules 2010 provide that:-“Any party may at any stage of a suit whose admission of facts has been made either on the pleadings or otherwise apply to the Court for such judgement or order as up on such admissions he may be entitled to without waiting for the determination of any other question between the parties and the Court may up on such application make such order or give such judgement as the Court may think just”.As evidenced in the Respondent witness statement and the written submission the Respondent admitted owing the Claimant and even urged the Tribunal to enter judgement for the balance of Kshs.33,530/=.

16. The Claimant to be refunded Kshs. 100,230/= and did not demonstrate to the Tribunal how such an amount was arrived at. The Tribunal has worked out the figures and came up with a conclusion that the amount due to him is Kshs.33,530/=.

17. Accordingly we enter judgement in favour of the Claimant against the Respondent for refund of Kshs.33,530/= plus interest at the Tribunal rates.On costs each party shall bear his/her own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025HON. BEATRICE SAWE MEMBER SIGNED 30. 1.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 1.2025HON. PHILIP GICHUKI MEMBER SIGNED 30. 1.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 1.2025HON. PAUL AOL MEMBER SIGNED 30. 1.2025TRIBUNAL CLERK MUTAIJudgment delivered in absence of the parties.LaterAluodo advocate holding brief for Kulei advocateHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025