[2022] KECPT 150 (KLR)

Maiyo v Ufundi Sacco Society Limited (Tribunal Case 795 of 2017) [2022] KECPT 150 (KLR) (Civ) (4 February 2022) (Judgment)

Neutral citation: [2022] KECPT 150 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 795 of 2017

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 4, 2022

Between

Daniel K. Maiyo

Claimant

and

Ufundi Sacco Society Limited

Respondent

Judgment

1. The Claim for determination was brought by way of Statement of Claim dated 7. 12. 2017 and filed on even date.The Claimant seeks for a refund of his share contribution paid regularly to the Respondent.The Claimant also claims all withheld costs due to dividend and interests from date of resignation.In May 2017 the Claimant withdrew his membership from Respondent and gave the 60 days’ notice as was required. The Claimant states the Respondent has ignored and neglect to pay his refunds and thus prays for:a.A declaration that the Claimant made due contribution/shares with the Respondent during his membership period and an order compelling the respondent to furnish the court with a full statement to the Claimants outstanding deductions and subsequently the shares interests and dividends due to him.b.An order for refund of the shares with interests and dividends accrued thereof on the shares as from the date of his issuance of notices of withdrawal and any deductions made thereafter with interest upon confirmation and ascertainment of (a) above.c.Costs of claim.

2. There was Interlocutory Judgment entered against the Respondent on 10. 7.2019 and case was set for Formal Proof. In an interesting twist the matter came for Formal Proof and on 3. 12. 2019 the Claimant stated there was an appearance by the Respondent and had a filed a Defence and sought for an adjournment.On 15. 2.2021 the Claimant was directed to file Statement of Account within 30 days and in order to proceed with determination of the case.On 8. 11. 2021 the Respondent made appearance for the 1st time.Matter was directed for written submissions to be filed and only Claimant had filed their submissions dated 30. 10. 2021 on 23. 11. 2021.

3. It is important to note that no consent was filed between Claimant and Respondent to set aside the Interlocutory Judgment at all and even so there are no documents on record filed by the Respondent as alleged.Thus the Respondent does not have locus to address the Tribunal .The case being one of refunds should have been a straight forward claim. However, the Claimant avers in his statement of Claim to have issued 2 notices to the Respondent withdrawing his membership. Paragraph 6 of Statement of Claims talks of 29. 4.2003 and 17. 5.2017. A difference of 14 years before he followed up his refunds.A reminder letter was sent on 1. 4.2005. There is no doubt the Claimant was a member of the Respondent because as per his list of documents dated 7. 12. 2017 the documents produced are:a.Demand letter dated 17th May, 2017b.Claimant’s copy of identity cardc.A copy of the claimant’s membership card no. 7856BBF0002. d.Copies of resignation letters dated 29th April 2003, and 1st April 2005. e.Claimant’s copies of payslipsThe Claimant has attached copies of his payslip which evidence deductions being made.However, in closer scrutiny the deductions read a figure of 0(zero) but with dividends being paid out.

4. The Claimant prays for:a.A declaration that the Claimant made due contribution/shares with the Respondent during his membership period and an order compelling the Respondent to furnish the court with a full Statement to the Claimants outstanding deductions and subsequently the shares interests and dividends due to him.b.An order for refund of the shares with interests and dividends accrued thereof on the shares as from the date of his issuance of notices of withdrawal and any deductions made thereafter with interest upon confirmation and ascertainment of (a) above.c.Costs of claim.The issue for determination will thus be whether the Claimant is entitled to the prayers sought for in the Statement of Claim?From the Claimant’s documents indeed the Claimant was member of Respondent.How much contributions was made is not known.The Claimant now wants for the Respondent to give a Statement of Account and pay him his dues.We do find the Claimant has no case against the Respondent for the reason the case is time barred.Claimant issued notices on 29. 4.2003 and 1. 4.2005. 12 years later his Advocate did a demand letter to the Respondent.In the case of Haron Onyancha -Vs- National Police Service Commission and Another [2017] eKLR the court held:“The law of limitation of actions is intended to protect the defendants against unreasonable delay in bringing of suits against them. The statute expects the intending Plaintiff to exercise reasonable diligence and to take reasonable steps in his own interest.Special provisions is made for infants and for the mentally unsound. But rightly or wrongly the act does not help persons like the Applicant who whether through dilatoriness or ignorance, do not do what the informed citizen would reasonably have done.”The same case again the court states:“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on the one hand, protect a defendant after he has lost evidence for his evidence for his defence from being disturbed after a long lapse of time. The effect of a limitation enactment is to remove remedies irrespective of the merits of the particular case.”

5. Be that as it may as stated earlier the Respondent are not properly on record and we shall not plead their case.The upshot of the above is that the Statement of Claim is struck out for being statutorily time barred.No order as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF FEBRUARY 2022. Hon. J. Mwatsama Deputy Chairperson Signed 4. 2.2022Mr. P. Gichuki Member Signed 4. 2.2022Mr. B. Akusala Member Signed 4. 2.2022Tribunal Clerk R. LeweriNo appearance by both partiesJudgment delivered in absence of both parties.Hon. J. Mwatsama Deputy Chairperson Signed 4. 2.2022