[2023] KECPT 912 (KLR)
The Tribunal found that it had jurisdiction under Section 76(2) of the Cooperative Societies Act to hear disputes involving claims by members or past members for debts or demands due from a cooperative society. The Claimant, having withdrawn from the Sacco, was entitled to a refund of his dues, less amounts already...
Source-derived case information.
- Citation
- [2023] KECPT 912 (KLR)
- Parties
- Applicant: Richard Mugambi Maingi; Respondent: St. Marys Transport Sacco Society Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 697 of 2019
- Procedural Posture
- Civil Claim / Judgment
- Outcome
- Claim partly allowed in favour of the Claimant.
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Cooperative Societies Disputes, Refund of Member Shares, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Mugambi Maingi
Applicant
St. Marys Transport Sacco Society Ltd
Respondent
Procedural Posture
Civil Claim / Judgment
Legal Issues
- 1 Whether the Tribunal has jurisdiction to entertain the claim.
- 2 Whether the Claimant is entitled to a refund upon withdrawal from the Sacco.
- 3 Whether the Claimant is entitled to compensation for loss of income.
Ratio Decidendi
The Tribunal found that it had jurisdiction under Section 76(2) of the Cooperative Societies Act to hear disputes involving claims by members or past members for debts or demands due from a cooperative society. The Claimant, having withdrawn from the Sacco, was entitled to a refund of his dues, less amounts already paid. The Claimant proved his entitlement to Kshs. 180,679 as a refund, supported by documentary evidence. However, the claim for compensation for loss of income failed due to lack of specific proof or documentary evidence. The Tribunal thus ordered the refund but dismissed the claim for general damages for loss of earning capacity.
Court Disposition
Claim partly allowed in favour of the Claimant.
Orders
- The Respondent refunds the Claimant Kshs. 180,679.
- Prayer for general damages for loss of earning capacity fails.
Full Case Text
Judgment text and source record
23 paragraphs
Maingi v St. Marys Transport Sacco Society Ltd (Tribunal Case 697 of 2019) [2023] KECPT 912 (KLR) (Civ) (31 August 2023) (Judgment)
Neutral citation: [2023] KECPT 912 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Civil
Tribunal Case 697 of 2019
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 31, 2023
Between
Richard Mugambi Maingi
Claimant
and
St. Marys Transport Sacco Society Ltd
Respondent
Judgment
1. The Claim is through a Statement of Claim dated 28/6/2021 and filed on 26/07/2021 as an amended Claim. The Claimant also filed a Witness Statement and a Verifying Affidavit sworn on 15/11/2019. A List of Documents was also filed on 05/11/2019 and filed on the same date. The Respondent filed a Statement of Defence dated 11/12/2019 filed on 18/12/2019.
The Claimant’s Case. 2. Claimant Witness 1 was the Claimant himself, Richard Mugambi. He adopted his Witness Statement dated 28/06/2021 filed on 26/07/2021 and a list of documents dated 28/06/2021 filed on 26/07/2021 and produced as Claimant Exhibit 1 as Evidence in Chief.The Claimant averred that he was desirous of withdrawing from the Sacco as of 10/09/2019. He further gave evidence that the Sacco denied him access to pick passengers from the SACCO’s (Respondent’s) stage. The Claimant prayed for a refund as prayed in the Statement of Claim.
Respondent’s Case. 3. The Respondent did not call any witness however, through the Statement of Defence, the Respondent averred that the Tribunal has no Jurisdiction as pleaded in Paragraph 8 of the Claim.
Analysis and Determination.Both parties were directed to file Written Submissions. However, up to the time of writing this judgement, only the Claimant had filed their Written Submissions dated 25/11/2022 and filed on 16/12/2022. After perusing all the pleadings and Written Submissions, it is the Tribunal’s opinion that there are two issuesi.Whether the Tribunal has jurisdiction to entertain the claim?ii.Whether the Claimant is entitled to a refund?iii.Whether the Claimant is entitled to compensation for loss of income. Issue One i. Whether the Tribunal has jurisdiction to entertain this claim? 4. In Motor Vessel Lilian’s v Calter Oil (Kenya) Limited, the court held jurisdiction is everything. Without it, a court has no power to make one more step.The Co-operative Tribunal is established under the Cooperative Societies Act and has its jurisdiction stipulated. Section 76 indicates its Jurisdiction by stating the disputes that the Tribunal should handle. Section 76(2) states that a dispute includes a claim by a member, past member for any debt or demand due from a Cooperative Society, whether such debt or demand is admitted or not. We find that the Tribunal has jurisdiction to listen and entertain the present claim.
Issue Two ii. Whether the Claimant is entitled to a refund?It is trite law, that he who alleges must prove as was held in Wambui Ndiritu v Joseph Kiprono and Another [2005] EA 334. The Claimant produced a Loan Statement showing a balance of Kshs. 220,679/=. The Claimant accepted being given Kshs. 40,000/= for repairs of his vehicle. Thus the prayer for Kshs. 180,679/=.The Cooperative Societies Act read together with the Cooperative Societies Rules 2004 requires that members are entitled to refunds upon expulsion or withdrawal of membership.We find that indeed the Claimant is entitled to the refund and has proved as much. Issue Three iii. Whether the Claimant is entitled to compensation for loss of income.Equity demands that there can be no wrong without a remedy. The Claimant pleaded that he was unfairly denied access to the Respondent’s authorized loading bay, a claim the Respondent did not defend. This according to the Claimant crippled the Claimant’s operations. The Claimant further pleaded that he lost Kshs. 4,000/= per day from 16/10/2019 to date. He however did not produce any evidence documentary to support that claim. This prayer must be specifically pleaded and proved. There being no proof to show how, this prayer fails.
UpshotFrom the foregoing, the Tribunal, on a balance of probabilities, finds in favour of the Claimant against the Respondent.
Orders.1. The Respondent refunds the Claimant Kshs. 180,679/=2. Prayer for general damages for loss of earning capacity fails.3. Costs to follow the cause.
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 JEMIMAHMs. Mwanzia advocate holding brief for Mr. Mutua advocate for the claimant.No appearance by respondent.Judgment as delivered on 31. 8.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023