[2023] KECPT 1036 (KLR)
The Tribunal found that the claimant had issued a proper notice of withdrawal by providing a formal letter dated 10/03/2021 and supporting emails. The respondent did not dispute the claimant's membership or the amount claimed, and had already made a partial payment, leaving a balance of Kes 167,000.00. The...
Source-derived case information.
- Citation
- [2023] KECPT 1036 (KLR)
- Parties
- Applicant: Onesmus Muia Mutua; Respondent: Kencom Sacco Ltd
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 432 (E250) of 2021
- Procedural Posture
- Tribunal Claim / Judgment
- Outcome
- judgment for the claimant
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, PO Aol, M Chesikaw
- Legal Topics
- Sacco Membership Withdrawal, Refund of Shares, Notice of Withdrawal, Admission of Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Onesmus Muia Mutua
Applicant
Kencom Sacco Ltd
Respondent
Procedural Posture
Tribunal Claim / Judgment
Legal Issues
- 1 Whether the claimant issued a proper notice of withdrawal.
- 2 Whether the claimant is entitled to a refund of Kes 326,075.00.
Ratio Decidendi
The Tribunal found that the claimant had issued a proper notice of withdrawal by providing a formal letter dated 10/03/2021 and supporting emails. The respondent did not dispute the claimant's membership or the amount claimed, and had already made a partial payment, leaving a balance of Kes 167,000.00. The respondent's conduct amounted to an admission of liability under the Civil Procedure Rules. The Tribunal therefore held that the claimant was entitled to judgment for the outstanding balance, together with costs and interest.
Court Disposition
judgment for the claimant
Orders
- Judgment entered in favour of the claimant for Kes 167,000.00 plus costs and interest.
- Respondent to pay the outstanding balance of Kes 167,000.00 to the claimant.
Full Case Text
Judgment text and source record
27 paragraphs
Mutua v Kencom Sacco Ltd (Tribunal Case 432 (E250) of 2021) [2023] KECPT 1036 (KLR) (30 November 2023) (Judgment)
Neutral citation: [2023] KECPT 1036 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 432 (E250) of 2021
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, PO Aol & M Chesikaw, Members
November 30, 2023
Between
Onesmus muia Mutua
Claimant
and
Kencom Sacco Ltd
Respondent
Judgment
1. The matter for determination was brought vide a statement of claim dated and filed on 8/10/2021. The Claimant avers to be a member of the Respondent and that on 11/3/2021 he wrote to the Respondent expressing his wish to withdraw his membership and sought a refund of his shares.The claimant claims that on diverse dates he wrote to the respondent on email and visited the respondent’s office with an aim of seeking refund without success.
2. The claimant therefore prays for judgement against the respondent for;a.The said sum of Kes 326,075. 00/= being shares contributions.b.Costs of the suit and interest until payment in full.c.Any other relief so deemed appropriate by this Honorable Tribunal.The claim was accompanied by a verifying affidavit and witness statement sworn by Onesmus Muia Mutua dated and filed on 8/10/2021. Also accompanied by a list of documents dated 8/10/2021. The List has;a.Letter of withdrawal.b.Emails.c.Statement of Account.
3. In response to the claim, the respondent filed a statement of defence Dated 26/11/2021 and filed on 17/12/2021. The respondent denies that the claimant wrote to the respondent expressing his wish to withdraw membership from the respondent and denies that the claimant is entitled the Kes 326,075. 00/=.
4. At the proceedings, the respondent offered to pay the claimant in installments as follows:a.The respondent has paid the 1st installment.b.2nd installment is end of March 2022. c.3rd installment is end April 2022.
5. Being a refund matter parties were directed to file their Written Submissions to dispense off with the claim but at the time of writing this judgment none had filed their Written Submissions.
Issues a.Whether the claimant issued a proper notice of withdrawal?
b.Whether the claimant is entitled to a refund of Kes 326,075. 00/=?
Analysis Issue One- a. Whether the Claimant issued a proper Notice of Withdrawal? 6. The Claimant avers he sent a withdrawal letter but the Respondent denies the same. The Claimant has provided a letter dated 10/03/2021 which clearly states that the Claimant wishes to formally withdraw his membership from 11/03/2021.
7. As such the notice of withdrawal constitutes a proper notice withdrawal and request for refund. In addition, the Claimant has attached emails seeking a refund of his shares.
Issue Two- b. Whether the Claimant is entitled to a refund of Kes 326,075. 00/=? 8. The Respondent does not deny the Claimant was their member but only wish for time to pay the same in installments. The Respondent has made a partial payment of Kes 218,000. 00/= leaving a balance of Kes 167,000. 00/=.
9. The respondent has clearly admitted to the claim as per order 36 rule 1 and order 13 rule 2 of the Civil Procedure Rules, 2010 which provides that a party may apply to Court where admission of facts has been made. In ChoitramvNazari the Court of Appeal stated the admission should be clear and unequivocal. As such we are convinced the claimant’s claim as of 28th November is Kes 167,000. 00/=.
Upshot 10. Judgement is entered in favour of the claimant against the respondent for Kes 167,000. 00/= plus costs and interests.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahNo appearance by parties.Judgment read in absence of the parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023