[2024] KECPT 1521 (KLR)

Mepukori v Metropolitan National Sacco Society Limited (Tribunal Case 5 (E006) of 2023) [2024] KECPT 1521 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KECPT 1521 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 5 (E006) of 2023

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

October 3, 2024

Between

Paramuat Leonard Mepukori

Claimant

and

Metropolitan National Sacco Society Limited

Respondent

Judgment

1. Through a Statement of Claim dated 6th January, 2023, the Claimant moved this Tribunal seeking judgment against the Respondent for:a.The sum of Kshs. 599,881. 25/=b.Costs of the suit and interest until payment is made in full.c.Any other relief so deemed appropriate by this Honourable Tribunal.

2. In support of the claim, the Claimant filed a Verifying Affidavit, Witness Statement, List of Witnesses and List of Documents all dated 6th January 2023.

3. In response, the Respondent filed a notice dated 30. 1.2023 and appointed Ms. H.T Associates advocates to act for them.On 2nd June 2023, a Statement of Defence dated 8th February, 2023 and List of Documents dated 8. 2.2023 were filed in the Tribunal.

Claimant’s Case 4. It is not in dispute that the Claimant was a member of the Respondent, holding membership number 11965 and was making monthly deposits into her Fosa Account No. 367020.

5. That on 1. 2.2022 he wrote a letter to the Respondent to have his share deposits of Kshs. 599,881. 25/= and Fosa balance of Kshs. 1,146. 36/= after filing a Sacco membership withdrawal request form and account statement request form.Upon receipt of the letter he was advised that the refund will deposited into his Fosa account within 60 days.

6. When the refund was not deposited, the Claimant state that he visited the Respondent’s office several times to demand for the same. When his efforts failed to yield any outcome, he decided to seek redress in the Tribunal.

THE RESPONDENT’S CASE 7. The Respondent’s Statement of Defence dated 8. 2.2023 denied every claim of the Claimant.They further state that they did not receive the Claimant’s Notice of Withdrawal for the simple reason that it was not stamped by the Respondent.

8. The Respondents contented that even if they received the Claimant’s notice of withdrawal they would not have refunded his deposit because in an Annual General Meeting of the Respondents held in 2022, members resolved and agreed to stop refunds to her members for two years due to liquidity challenges which was facing the Sacco specifically paragraph 10 of the Respondent’s Statement of Defence state:“The Respondent avers that consequently the claimant’s refund has to be put in abeyance in accordance with the above mentioned 2022 Annual General Meeting resolution which was passed in the said Annual General Meeting and hence are binding to the Claimant. “

9. Finally, the Respondent prayed that the Claimant’s suit be dismissed with costs.

10. On 14. 6.2023, the parties agreed to canvas the matter by way of written submissions and by the time of writing this judgment the Respondents had not filed their written submissions despite being ordered by the Tribunal on 8. 5.2024 to file within 14 days.

11. Having read through the documents filed by the parties on record, we have framed the following issues for determination.a.Whether the claimant has established a basis for the refund of her deposit?b.Who would bear the cost of this suit.

Analysis And Determination Whether the Claimant has established a basis for the refund of her deposit? 12. The Claimant contend that she wrote a letter dated 4. 11. 2022 to withdraw her membership from the Sacco and took it to the Respondents’ offices in Chai House, Koinange Street – Nairobi.

13. The Respondents have denied service of such a letter and argue out that the same was not stamped by the recipient. whilst the letter does not contain an endorsement of receipt. Considering that the Claimant is an ordinally citizen and not a lawyer. We have no reason not to belief that she delivered the letter/notice and as such we are of the view that the notice/letter was served upon the Respondent.

14. Turning to the reason advanced by the Respondents that the Claimant could not be refunded her deposits because there was an Annual General Meeting resolution which was passed in 2022 to stop refunds for two years.We consider the above to be an admission by the Respondent which is a kin to saying ;“Yes we owe the Claimant Kshs. 426,356. 64/= but we have an Annual General Meeting resolution which stopped us from refunding. “The Respondent further contend that the said 2022 Annual General Meeting resolution bound the Claimant.

15. To answer this, we place our reliance on the reasoning of this Tribunal in the case of Weldon Rotich versus Metropolitan National Sacco Limited 2019 in which the Tribunal stated as follows:“Without delving in detail about the Respondent’s reference to the resolutions passed at its Annual General Meeting and the binding nature, we hasten to say that the jurisdiction of this Tribunal to entertain disputes between members of a Cooperative Society is clearly delineated by Section 76 of the Cooperative Act Cooperative Act Cap 490. The wording of the Act does not provide room for parties to maneuver.The said jurisdiction is thus not subject to or subservient to resolutions passed by the respective Cooperative Societies. With this in mind, we find the Respondents reference to the Resolution passed in an Annual General Meeting of 2019 and endorsed by SASRA and the Commissioner for Cooperatives Development inconsequential. They are of no legal effect as far as our jurisdiction to entertain claims of this nature are concern.”

16. It is our finding that the suit before us is not different from the above quoted case in which the same respondent used the excuse of a resolution of a 2019 Annual General Meeting as a reason not to pay the Claimant. In the instant case, the Respondents have again used a resolution passed by her members in 2022 to deny the claimant her deposits. The Tribunal finds this to be unacceptable and order that the Respondent should refund the Claimant her hard-earned deposits.

17. Having analyzed the documents on record, we find that the Claimant has established her case on a balance of probability. We therefore enter judgment in favour of the Claimant against the Respondent for refund of Kshs. 599,881. 25/= plus interest at Tribunal’s rate plus cost.

18. Since costs follow the event as provided under the Civil Procedure Act/Rules, we hereby order that costs shall be borne by the Respondent.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024TRIBUNAL CLERK MUTAINo appearance by partiesJudgment delivered in absence of parties.LaterParmuat Leonard Mepukori presentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024