[2023] KECPT 781 (KLR)

Maina v Metropolitan National Sacco Ltd (Tribunal Case 371/E003 of 2022) [2023] KECPT 781 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 781 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 371/E003 of 2022

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

August 31, 2023

Between

Paskwel Kinyanjui Maina

Claimant

and

Metropolitan National Sacco Ltd

Respondent

Judgment

1. The matter for determination was brought vide an Amended Statement of Claim dated 26th September 2022. The Claimant claims that he was a member of the Respondent and joined as a member by virtue of being an employee of Naivas Supermarket Ltd. The Claimant further claims that while in the course of his employment at Naivas Supermarket, he fell ill and was admitted to St. Theresa Maternity and Nursing Hospital in Kikuyu. The claimant was unable to work and he had to be retired on medical grounds. He claims that consequent to his retirement, he was unable to continue with his contribution and his membership in the Respondent.

2. In 2017, he applied to withdraw his membership from the Respondent. He claims that he wrote to the Respondent requesting to withdraw his membership, get back his savings, total dividends and any benefits accruing from his membership of the Respondent. The Claimant claims that the letter never elicited any response. The Claimant made a follow up of his demand in 2022 through his advocate who wrote a further letter requesting for his dues as a member. He followed up the letter with a phone call to the Respondent’s head office. He further claims that he was advised to visit the nearest branch and present his case. Pursuant to this direction, the Claimant visited the Respondent’s Nakuru Branch he was told that he can be allowed to withdraw his deposits as the Respondent computed his other dues.

3. The claimant claims that in spite of the assurance made by the Respondents Branch Manager at the Nakuru Branch, the Claimant was only allowed to withdraw a sum of Kshs. 5,000/=. In other instances, he was informed that he could not withdraw Kshs. 2,000/= per day. The Claimant claims that the Respondent is forcing him to remain as their member when he retired on health grounds and therefore unable to make further contribution and because there are no benefits accruing from the said membership. He further claims the conduct of the Respondent is patently illegal and in contravention with the Claimant’s rights.

4. The Claimant prays for judgement against the Respondent for: -a.An order that by virtue of the notice issued by the Claimant on 7th February 2022, the Claimant has ceased to be a member of the Respondent.b.An order compelling the Respondent to refund the Claimant a sum of Kshs. 476,660. 00. c.Costs of this claim.

5. The Respondent filed a Statement of Defence dated 29th July 2022. The Respondent denies the contents of the Statement of Claim. They state that they were not aware that the Claimant fell ill. Further, they deny receiving the Claimant’s notice of withdrawal and as per the Sacco’s by laws, if any notice of withdrawal of membership was ever received, member was required to wait 60 calendar days after making a refund request in writing. The Respondent claims that as per the 2022 Annual General Meeting Resolutions, members resolved and agreed to stop all further refunds, which has been brought on by the liquidity challenges faced by the Respondent, a fact well known by the Claimant.

6. The matter being one of refund, parties were directed to file their written submissions to dispense off the merit suit. The Claimant filed their written submissions dated 24th January 2023. The Respondent filed their written submissions dated 13th April 2023.

7. Having looked into the pleadings and the written submissions filed by the parties we find that:

Issue one Whether the Claimant issued a proper Notice of withdrawal from the SACCO? 8. From the evidence provided, it is clear that the Claimant has provided a withdrawal notice dated 7th February 2022 for a refund. The Respondent claims that the withdrawal notice does not bear the Respondent’s Stamp to show that the same was received, as per the provisions of the Sacco Society by laws on withdrawal of membership. However, the Respondent has not produced anything to show that there is a standard format for notice of withdrawal from the SACCO, and as such, the said letter by the Claimant constitutes a proper Notice of Withdrawal and request for refund.

9. The Respondent has cited unspecified provisions of the SACCO’s bylaws, and did not produce them before this Tribunal. It is the Respondent’s allegation that the Claimant did not follow the process of withdrawal, and it was subsequently the Respondent’s responsibility to prove this assertion, but the Respondent failed to do so. This clearly shows there is an admission from the Respondent and thus a right for Claimant to be refunded.

Issue two Whether the Claimant is entitled to a refund of Kshs. 476,660. 00/=? 10. The Respondent has not contested owing the Claimant Kshs. 476,660. 00/= but they claim that the same cannot be refunded because members resolved and agreed to stop all further refunds as per its 2022 Annual General Meeting Resolutions. This clearly shows there is admission from the Respondent and thus a right for the Claimant to be refunded.

11. Order 13 rule 2 of the Civil Procedure Rule, 2010 provides that any part where admission of facts has been made, apply to the court for such judgement or order as upon such admissions as he may be entitled. Similarly, in Choitram v Nazari the Court of Appeal stated that admission should be clear and unequivocal. The admission must leave no room for doubt. In this case, the Respondent has clearly admitted to the claim.

a. Who bears the costs of the suit? 12. The Respondent is to bear the costs of this suit.

Upshot 13. As such Judgement is entered in favour of the Claimant against the Respondent in the following terms;a.We hereby issue an order that by the virtue of the notice issued by the Claimant on 7th February 2022, the Claimant has ceased to be a member of the Respondent.b.Refund of Kshs. 476,660. 00/=, succeeds.c.Costs and interest of this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023