[2024] KECPT 1162 (KLR)

Mulinge v Kencom Co-operative Savings and Credit Society Limited (Tribunal Case 130 (E177) of 2024) [2024] KECPT 1162 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1162 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 130 (E177) of 2024

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

July 25, 2024

Between

Jackson Mutua Mulinge

Claimant

and

Kencom Co-operative Savings and Credit Society Limited

Respondent

Judgment

1. The matter before the Tribunal is a Claim which was filed on 6/12/2022 by the Claimant vide a Statement of Claim dated 6th December, 2022 seeking for judgement against the Respondents for:a.Refund of Kshs. 132,000/= being the Claimants deposits held by the Respondent.b.Interest on (a).c.Cost to be provided for.d.Any other just relief deemed fit by the Honourable Tribunal.

2. The Statement of Claim is supported by a Witness Statement dated 6th December, 2022 sworn by Jackson Mutua Mulinge, a Verifying Affidavit, List of Documents which include the Claimant’s member Statement from Kencom Sacco Ltd. the Statement of Claim and the Document in support were served upon the Respondent as evidenced by an Affidavit of service made by M/s Mary Olimta Gatari Njue.

3. Inadvertently, the Respondents filed a memorandum of Appearance dated 9th March, 2022 on 23rd May, 2023 after over one (1) year since the filling of the Claim.On the same date 23rd March 2023, the Respondent filed a Statement of Defence and denied the Claim made by the Claimant.

4. In support of the Defence, the Respondent filed a Witness Statement dated 4th August, 2023 by M/S Sheila Camelyne Khamati who is the Accounts Officer of the Respondent and a Respondent’s List of Witness.

5. On a mention date of 3/9/2023, the Respondent and their Advocate did not appear in the Tribunal and the Claimants Advocate requested for a hearing date.The Tribunal issued the following orders.i.That the mater being one for refund of deposits, the parties were directed to dispense it by way of Written Submissions.ii.That the Claimant to file and serve Written Submissions within 14 days.iii.That the Respondent to file and serve Written Submissions as well within 14 days on receipt of the Claimant’s Written Submissions.iv.That mention to confirm compliance and get a judgement date on 13/12/2023.

6. On 13/12/2023 mention date, again the Respondent nor his counsel attended the Tribunal. However, the Claimant’s Counsel requested the Tribunal for 7 days more to file and serve the Written Submissions which was granted. The Claimant was directed to issue Notice to the Respondents.

7. When the Respondents failed again to attend another mention date on 22/4/2024 and further failed to file and serve their Written Submissions, the Tribunal was left with no option but to write this Judgement without the Written Submissions of the Respondent.

ANALYSIS. 8. This is a claim for refund of a deposit. The Claimant produced a letter dated 9/9/2019 which he wrote to the Respondent to withdraw his membership from the Sacco. The Sacco acknowledged receipt and confirmed that according to her by-laws, the Claimant will be refunded his deposits after 90 days’ notice. This clearly showed that the Claimant gave a proper Notice of Withdrawal that needed to be addressed by the Respondent. The Tribunal finds so.

9. After 1 year 8 moths, more specifically on 3rd May, 2021, a Demand letter was served upon the Respondents to remind them that they have not honoured their obligation to refund the Claimant’s deposit. This letter of demand was ignored by the Respondents for reasons that was not brought out.

10. However, we note in response to the withdrawal letter of the Claimants that the Respondents had advised the Claimant to choke his guarantor status. This called for the Tribunal to examine the member’s statement which shows that as at 23/8/2019, the total outstanding deposits in Kshs. 132,000/= and that there are no debits in the account since 2017. This is interpreted to mean that the Claimant does not owe any money to the Respondent. In this regard, the Tribunal agrees with the Claimant that is indeed the Claimant owed any money to the Respondent or guaranteed any member of the Sacco, nothing stopped them from tendering proof of the same. The Respondent’s Witness Statement that they are preparing a schedule of payments has not been tendered as evidence till now.It is therefore our finding that there is no evidence to show that the Claimant owed the Sacco or is a guarantor to any member of the Sacco.

11. The Tribunal dealt with a similar matter in the case of Lydia Njoki Muringih vs. Postmail Co-operative Society Limited (2021) where a decision was rendered thus.“We have considered the Claim and the arguments preferred by the parties. We have particularly perused the Claimants statement of account dated 3/1/2020, it shows that the amount due and owing to the Claimant as at 30/1/2020 was Kshs. 303,000/=. No other material has been provided to prove otherwise. This leaves us with only one irresistible conclusion that the Respondent has not refunded the deposits as alleged. The Respondent is then entitled to refund the said deposits.”

12. This case cannot be said to be premature when the Respondent has had all the time to provide their evidence and when they refuse and neglect to attend the Tribunal mentions and hearings. This kind of attitude is only exhibited by one who has no evidence to present to the Tribunal.

13. In conclusion, we find that the Claimant’s Statement of Claim dated 6th December, 2022 is merited and enter Judgement in favour of the Claimant against the Respondent for the refund of Kshs. 132,000/- being the Claimant’s deposit.the Respondent shall pay the cost and interest at the Tribunal’s rate from the date of filling this matter until payment is made in full.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA - CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE - MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI - MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER - SIGNED 25. 7.2024Tribunal Clerk JemimahOwino advocate holding brief for Mutuku advocate for ClaimantNo appearance for RespondentHON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024