[2021] KECPT 241 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.466 OF 2019

MICHAEL ONYANGO OBIERO.....................................................CLAIMANT

VERSUS

KENYA QATAR DIASPORA SACCO.......................................RESPONDENT

JUDGMENT

1. The Claim filed in court is dated 19. 7.2019 filed in court on 15. 8.2019. The claim seeks for judgment against the Defendant for:

a. Refund of Kshs.604,000/=

b. Interest on (a) above at court rates from August 28th 2018 till settlement

c. Dividends and interest owing as at the date of judgment

d. Damages

e. Costs to the suit.

2. The Plaintiff states he was a member of the Defendant and was admitted by being given No. 2812 as his membership number.

The claim against the Defendant is for recovery of Kshs.604,000/= in respect of savings accumulated with the defendant.

Despite demand and notice of intention to sue the defendant refused and or neglected to pay the Plaintiff the sum due to him.

3. The Respondents /Defendants did not enter Appearance despite service and the Application Request for Judgment dated 12. 10. 2019 was entered on 17. 10. 2019 and matter was to proceed for formal proof for prayer C and D that is

Prayer C- Dividend and interest owing as at date of judgment

Prayer D- Damages.

On 9. 2.2021 the Defendant/Respondent filed a Notice of Appointment dated and filed on even date.

When the matter came for formal proof hearing on 9. 2.2021 the case proceeded and Claimant testified relying on his witness statement dated 19. 7.2019 and list of documents filed on 15. 8.2019. the same was adopted as his Evidence- in- Chief.

There was a further list of documents filed on 8. 2.2021 and the same was produced as evidence exhibit 1 and 2.

4. His claim is for dividends which have never been paid as per paragraph 65 By-laws of the Respondent. He stated he did not know the rate of the dividends.

The Claimant further also prayed for damages. He had planned to purchase a tractor but he was unable because the Respondent had his money.

At the close of the Claimant case the court ordered for the Claimant to file and serve audited accounts to enable determination of rates of Dividends.

The Claimants filed their submissions dated 10. 5.2021 on even date together with the audited accounts of the Respondent.

The issues to be determined by court are:

Issue one

Whether dividends are payable to the claimant and if they are how much is owing?

Issue two

Whether damages are payable?

Issue one:

5. Looking into the accounts filed therein we note in the:

Year 2016 Surplus of Kshs.490,564

Year 2017 Surplus of Kshs.1,352,970

Year 2018 Surplus of Kshs. 4,026,038

Year 2019 Surplus of Kshs.10,621,800. 57

To this end we note that there was no mention of any dividends to be paid to its members this prayer must fail.

6. Issue two:

Damages

The Claimants in their submissions state that there was breach by Respondent when it failed to honour its obligation in paying the Claimant his refund.

The Claimant quoted By-law provision 4. 1 and 4. 2.

He states he has been disempowered economically which is against the general objectives of the Respondent.

The case of Consolata Anyango Ouma –vs - South Nyanza Suja Company Limited [2015] eKLR ;

“ The next question is whether the Appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred.”

This is principle is encapsulated in the latin phrase restituta integrum( see Kenya Industrial Estates Limited -vs- Lee Enterprises Limited NRB CA NO. 54 OF 2004 [2009]

“ Restitution integrum here does not mean restoring to the Respondents the amount they paid for the machines. It means putting the Respondents in the position they held before the fire. They were then not only the owners of the machines which could costs Kshs.65,000 to buy new, but also in happy position of having paid Kshs.13,500 for them”

The measure of damages is in accordance with the Rule established in the case of Handley -vs- Baxendale [1854] 9 exch 341

“ That the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time of the contract was made and a probable result of such breach...”

The upshot of the above is that the Tribunal enters judgment for claimant against respondent as follows:

a. Refund of Kshs.604,000/= as per judgment initially entered on 17. 10. 2019.

b. Interest at court rates from date of filing suit.

c. Prayer for dividends and interest fails

d. Damages an award of Kshs. 25,000/= is granted.

e. Costs of the suit to be paid to Claimant.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JULY, 2021.

HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021

HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 7.2021

MR. GITONGA KAMITI MEMBER SIGNED 29. 7.2021

TRIBUNAL CLERK CHARLES MAINA

Mbuthia advocate for Respondent : Present

We pray for 30 days stay of execution.

Order: 30 days stay granted.

HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 7.2021