[2023] KECPT 755 (KLR)

Maringa v Harambee Sacco Society Limited (Tribunal Case 285 of 2019) [2023] KECPT 755 (KLR) (26 October 2023) (Judgment)

Neutral citation: [2023] KECPT 755 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 285 of 2019

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

October 26, 2023

Between

John Maringa

Claimant

and

Harambee Sacco Society Limited

Respondent

Judgment

THE COUNTER CLAIM CLAIMANT’S CASE 1. The Respondent, now the Claimant in the Counter-Claim dated 4/7/2019 stated that the Claimant continued to draw allowances from the Respondent as a delegate from August 2018, to March 2019, while he had already been transferred from Kirinyaga to Mathira East Sub County, hence claiming Kshs. 70,527/= from the Claimant.

2. The Respondent claims that the Kshs. 70,527/= was the monthly allowance illegally earned by the Claimant. The Respondent avers that the Claimant concealed his transfer in order to continue drawing monthly allowances from the Respondent.The Respondent conducted the election in Kirinyaga branch on 4/4/2018 to replace the Claimant.After the branch elections, the Claimant could not defend his seat since he was no longer a delegate of that branch.

3. The Respondent states that on 1/6/2019, the Claimant was further transferred from Mathira East to Mandera.The Respondent prays for judgement against the Claimant for:a.The Claimant’s Claim be dismissed with costs.b.Kshs. 70,527/= with interest at prevailing bank rates.c.Costs of the Counter-claim and interest.In the Respondent witness’ statement, Ms. Rosemary Ooko, a delegate’s relationship officer in the Sacco confirms, the Sacco vide 4/4/2019 letter informed the Claimant’s branch to conduct delegates elections to fill vacant positions of Secretary and Treasure who had been transferred out of the branch.

4. The witness avers that the Respondent stopped Claimant’s allowances upon ceasing to be a delegate on 16/7/2018 after the transfer from Kirinyaga.The witness states that the Claimant could not have been invited to the Sacco’s 2019 Annual General Meeting held on 15/4/2019 since he was no longer a delegate of the Respondent.The by-election to fill the Claimant’s vacant position was held on 27/5/2019. The witness further states that the Claimant had received illegal allowances for the month of August, 2018, September, 2018, October, 2018, November, 2018, December, 2018, January, 2019, February, 2019 and March, 2019 while he was already transferred out of Kirinyaga branch.She stated that the Claimant should repay the Kshs. 70,527/= illegally paid to the Claimant.

5. During the hearing of the Counterclaim on 1/11/2022, the Respondent witness, Ms. Rosemary Ooko adopted her statement; Witness Statement dated 4/7/2019 as her evidence in chief. She also adopted her list of documents dated 4/7/2019. She reinstated her evidence as contained in her witness statement.On cross examination, Mrs. Ooko states that the Claimant was irregularly paid allowances since he had ceased being a delegate of Kirinyaga branch.She also stated that she was not aware that the Claimant’s transfer was rescinded. On the assertion by the Claimant advocate Ms. Ooko stated that she was not aware that the Claimant wanted to vie for chairmanship. She reiterated that once a member is transferred from a branch, he/she ceases to be a member of that branch, but confirmed that there was no letter confirming the same.She confirmed that allowances are not stipulated in the by-laws.

6. On re-examination, the witness confirmed that the Claimant had been transferred from Kirinyaga to Mathira and then Mandera and that he was on further studies in Hungary. She reiterated that allowances are only payable when members are serving and that the electoral zone caters for such allowances.She stated that the Claimant concealed his transfer and continued claiming for allowances.

SUBMISSIONS. RESPONDENT’S CASE IN COUNTERCLAIM. 7. The Respondent’s case in the counterclaim in contained in Defence to counterclaim dated 25/2/2020. The Respondent states that he was never notified that he was no longer a delegate of Kirinyaga Branch. He denies knowledge of his transfer to Mathira East or any other place. He states that he diligently served his branch and denies owing the Claimant Kshs. 70,527/= as claimed.He challenged the assertions by the Claimant that he was transferred out of Kirinyaga Branch. He states that the by-elections were held when he was out of the Country and thus could not defend his seat.He denies that he occasioned damages to the Claimant. In his witness statement dated 25/2/2020, the Claimant, now the Respondent in the Counterclaim states that he was a delegate of Kirinyaga branch until March 2019 when he was unfairly stripped off his title of treasure by the Sacco. The states that he was entitled to a monthly allowance of Kshs.8,500/= as a delegate and treasure of the branch. The allowances are meant to facilitate the attendance of meetings.He stated that the allowances, are paid as a refund on production of minutes. The allowances are paid to those in attendance. He confirms that he only drew allowance for meetings he attended.He therefore denies receiving allowance irregularly. He states that the Respondent organized by elections without his knowledge, when it was known he was out of the country and could not avail himself for the elections.He denies that there were member complaints about his services at the branch.In his witness statement dated 25/2/2020, the Claimant, now the Respondent in the counterclaim states that he served as a treasure of the Kirinyaga Branch and attended all the Branch meetings, earning a monthly allowance of Kshs. 8,500/=.He denies earning such allowances illegally. He asserts that all the allowances earned were legal. He claims that the Respondent Sacco was victimizing his efforts to participate in the branch elections.Prays that the Counter-claim is dismissed with costs.

8. During the hearing, the Claimant Mr. John Maringa adopted his Witness Statement to the Counter-claim dated 11/11/2020. He also adopted his list of documents sated 25/2/2020. He denies the Claim of Kshs. 70,527/= stating that this was money paid for his attendance of branch meetings. He states that the payment is automated and payments is made once minutes are received. He states that he is still a resident of Kirinyaga but did not defend his position since he was out of the Country when the by-elections were held.On cross-examination, the Claimant confirmed he was awarded a scholarship on 27/4/2019 and that he did not offer himself for elections during the by-elections.On allowance for August, 2018 to September/October, 2018, he confirms receiving the same since he was still a delegate of the branch.On re-examination, the Claimant states that the Scholarship did not hinder him from performing his duties hence he is entitled to allowances. He claims he was doing virtual meetings hence justification for allowances.

ANALYSIS. 9. From the facts and evidence adduced in court, this court is invited to determine whether the Claimant in the counterclaim is entitled to the Kshs. 70,527/=.It is on record that the Respondent was not elected during the by-election of Kirinyaga branch.Any payments made after the Respondent’s services were terminated by the Sacco would be illegal and irregular.Records in the court show that the Respondent was transferred out of Kirinyaga county on 16. 7.2018. The Respondent despite his transfer out of Kirinyaga county earned monthly allowances from August, 2018. the Respondent had not informed the Sacco of his transfer out of Kirinyaga county.

10. We note that the Sacco, upon knowing that the Respondent had been transferred out of the County convened by elections on 27/5/2018 to replace him.These by elections were held on 27/5/2018 wherein the Respondent did not defend his portion.In total, we note that there were 8 monthly meetings between the transfer of the Respondent and the date of his replacement.The claimed Kshs. 70,527/= is for the months the Respondent received payments while he was not a delegate of the branch.The matter for determination by this court is whether:a.Did the Respondent receive the Kshs.70,527/= on allowances?b.Was the Kshs. 70,527/= allowances legal or illegal?

11. As regards the payment of Kshs. 70,527/= to the Respondent, it has been documented and pleaded in court that indeed the Sacco paid the respondent the Kshs. 70,527/= allowance. The Respondent does not deny receiving the payment.On whether the allowances paid the Respondent were legal, we note that the Respondent continued to attend branch meetings upto the time he was replaced as a delegate.

12. We also observe that the Claimant invoked bylaw 39 2(iv) in suspending the claimant, bylaw 39 9 (iv) was invoked in inviting the Respondent to the Sacco 2019 Annual General Meeting.By-law no 39 6 (iii) indicates that every member shall belong to one electoral zone, based on his place of employment in business, from which he will participate in elections. It is the delegates responsibility to inform the board of any change of electoral zone /employment.It was therefore the responsibility of the Respondent to infirm the board of his transfer from Kirinyaga branch. We note that this was not done.

CONCLUSION.We pass Judgment in favor of the Respondent against the Claimant as per the counterclaim.a.Spent.b.Kshs. 70,527/= with interest at prevailing bank rates.c.Costs of the counterclaim and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 26. 10. 2023Hon. J. Mwatsama Deputy Chairperson Signed 26. 10. 2023Hon. Beatrice Sawe Member Signed 26. 10. 2023Hon. Fridah Lotuiya Member Signed 26. 10. 2023Hon. Philip Gichuki Member Signed 26. 10. 2023Hon. Michael Chesikaw Member Signed 26. 10. 2023Hon. Paul Aol Member Signed 26. 10. 2023Tribunal Clerk JonahMs. Mureithi advocate for the Claimant.Respondent in Counter-claim.Gitonga Muriuki advocate for RespondentClaimant in Counter- claim – No appearanceJudgment as read out.Mureithi advocate – We pray for 30 days stay of execution as well as copy of judgment and proceedingsTribunal order30 days stay of execution granted.Hon. J. Mwatsama Deputy Chairperson Signed 26. 10. 2023NRB.CTC.NO.285 OF 2019 JUDGMENT A.W.N 0