[2024] KECPT 1412 (KLR)

Miano v Karombu Travellers Savings and Credit Cooperative Society Limited (Tribunal Case 303/ E424 of 2023) [2024] KECPT 1412 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1412 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 303/ E424 of 2023

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

August 29, 2024

Between

Daniel Macharia Miano

Claimant

and

Karombu Travellers Savings and Credit Cooperative Society Limited

Respondent

Judgment

1. This Tribunal is moved by the Claimant’s Statement of Claim dated 24th May, 2023 filed on 6th June 2023 seeking orders against the Respondent for:a.Refund of Kshs. 1,053,417. 00 savings/deposits.b.Dividends for the year 2022. c.Interest on (a) and (b) at Court rates from 6th March 2023 until payment is made in full.d.Costs of the suit.e.Any other/further relief that the Tribunal may deem fit to grant in the interest of justice.The Statement of Claim is supported by a Witness Statement signed by the Claimant dated 24/5/2023, a Verifying Affidavit, List of Documents and List of Witnesses, all dated 24/5/2023 and filed on 6th June, 2023.

2. While responding to the Claimant’s Claim, the Respondent filed a Statement of Defence dated 7th July 2023 on the same day and denied some of the averments and corrected the Claimant on the true position of the 2022 dividends.

3. In support of the Defence, the Respondents filed a Witness Statement of James Gichuru Thimbui dated 7th July, 2023, Respondents List of Documents, Respondents List of Witnesses and a copy of her Annual Report/Financial Statements for the year ended 31st December, 2022.

4. When the Tribunal mentioned the matter on 19/10/2023, the advocate for the Claimant states that they were exploring out of Court settlement and requested the Tribunal to grant them 30 days to see whether they would reach an agreement. The Tribunal granted the request and scheduled the matter for mention on 12/2/2024.

5. After the lapse of the 30 days, the parties reported back to the Tribunal on 12/2/2024 that they did not reach an agreement on the settlement of the Claim.On the same date, the advocate for the Claimant made an Application orally to withdraw the Claim for demand of dividends for 2022 under prayer 13(b) in the Statement of Claim. The Respondent did not have any objection and the Tribunal ordered as follows:“Prayer 13(b) of the Statement of Claim is hereby marked as withdrawn.”Further, the Tribunal directed the parties to file and serve their Written Submissions within 21 days.

6. We have read and examined the documents presented to the Tribunal including the Submissions of the parties and isolated two (2) issues for determination.a.Whether the Claimant has made a case to warrant the refund of his deposits of Kshs. 1,053,417. 00/= plus interest?b.Who should bear the cost of this suit.

Analysis and Determination. Whether the Claimant has made a case to warrant the refund of his deposits of Kshs. 1,053,417. 00/= plus interest? 7. Both the Claimant and the Respondent are in agreement that the Claimant was a member of the Respondent and he made contributions amounting to Kshs. 1,053,417. 00/=When the Claimant gave notice to withdraw his membership as per clause 17 of the Sacco’s by-laws on 5th January, 2023, he did not receive his refund on 6th March 2023 after the expiry of the 60 days period.In their submissions, the Respondent pointed out they mase a payment proposal to the Claimant of which he declined. This was denied by the Claimant and pointed out under Paragraph 7 of their Written Submissions that there was no such proposal. Upon examination of the Respondent filed documents, the Tribunal did not find any copy of the proposal and no such document was filed.

8. However, the Respondent provided the reasons why the Claimant’s deposits/savings was not refunded. The chairperson on his witness statement states as follows:“that the Respondent is presently experiencing liquidity challenges on account of default by its members which situation the Claimant is well aware of since he has been part of the supervisory committee. In light of the above, the demand by the Claimant for immediate payment of his dues is untenable.”We find this same position repeated in the Respondent’s Written Submissions while analysing issue No.1 in their frame of issues especially the Statement to the effect that the Respondent’s delay in remitting the refunds owed to the Claimant was a result of its poor management.

9. Further, we note that the Respondent submitted that there has been no reason to withhold the Claimants funds and if it did in fact have monies required, remittance of the same would have been done as soon as would have been possible. This is a clear admission that the Respondent owes the Claimant the amount claimed.

10. Given that on 16/10/2023, the Respondent wrote to the Claimant’s and proposed to refund the value of his shares and deposits in the Sacco through a monthly installment of Kshs. 50,000/=. On this note, the Tribunal rely on Order 13 Rule 1 od the Civil Procedure Rules 2012 which provides as follows;‘Any party to a suit may give notice by his pleading, or otherwise in writing, that he admits the truth of the whole or part of the case of any other party’

11. Owing to the fact that the respondent has admitted their willingness to refund the Claimants shares and deposits , it is imperative to consider their financial predicament as pleaded by the Respondent.This being a claim of a Liquidated sum of Kshs. 1,053,417. 00/= and the fact that the parties had tried out of court settlement but could not reach an agreement due to the positions taken by each party, for the interest of balancing the interests of the Respondent and the Claimant right to the refund, we order for the sum to be refunded by installment of Kshs. 100,000/= per month with effect from the date of this judgement.

12. On interest of the sum claimed, this Tribunal is guided by Section 26(1) of the Civil Procedures Act which provides that:“Where and in do far as a decree is for the payment of money, the court may in the decree order interest at such rate as the court deems reasonable to be paid on the principal sum as judged”In the instant matter, we order that the interest be calculated on the principal sum of Kshs. 1,053,417. 00/= at the Tribunal’s rate of interest from the date of filing this case until payment is made in full. For avoidance of doubt, any subsequent interest shall be calculated on reducing balance.

13. Regarding costs, we note that the Respondents submitted that each party should bear their own costs while on the other hand, the Claimant want the Respondent to bear it.While we do not wish to belabor on this, it is a trite law that “costs follow the event” and the Tribunal has found for the Claimant. Subsequently, we order that the costs of this suit shall be borne by the Respondents.

14. The upshot of this analysis is that we enter judgement in favour of the Claimants against the Respondent for Kshs. 1,053,417. 00/= plus costs and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia - Chairperson Signed 29. 8.2024Hon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe - Member Signed 29. 8.2024Hon. Fridah Lotuiya - Member Signed 29. 8.2024Hon. Philip Gichuki - Member Signed 29. 8.2024Hon. Michael Chesikaw - Member Signed 29. 8.2024Hon. Paul Aol - Member Signed 29. 8.2024Tribunal Clerk JonahMs. Kayiri advocate for the ClaimantMs. Wagechi advocate for the RespondentWangechi advocate – We seek for 30 days stay of executionKayiri advocate – We have no objection.Tribunal order- 30 days stay of execution granted.Hon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024