[2024] KECPT 975 (KLR)

Mwangangi v Comoco Sacco Society Limited (Tribunal Case 574 (E401) of 2021) [2024] KECPT 975 (KLR) (Civ) (23 May 2024) (Judgment)

Neutral citation: [2024] KECPT 975 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 574 (E401) of 2021

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

May 23, 2024

Between

Isaac Njeru Mwangangi

Claimant

and

Comoco Sacco Society Limited

Respondent

Judgment

Judgement Of The Tribunal 1. This judgement emanates from a demand of share refund of Kshs. 401,500/= which the Claimant above sought from the Respondent. A demand letter dated 12th May, 2021 was written to the Respondents who acknowledged receipt of the same. When it did not elicit any response, the Claimant filed a Statement of Claim dated 29th November, 2021 in the Tribunal on 20th December, 2021 seeking judgement against the Respondent for:i.Refund of his savings and shares of Kshs. 401,500/=.ii.Cost of the suit.

2. In support of the Claim, the Claimant filed a Verifying Affidavit, List of Documents, List of Witnesses all dated 29th November, 2021. He also attached a hand-written resignation letter dated 12th January, 2021, his pay slip for the month of December, 2020 and a copy of Sacco’s ledger details dated 7th July, 2020. The above documents were served upon the Respondent Sacco as evidenced by the filing of the Affidavit of Service dated 17th January, 2022.

3. In absence of Defence, the Claimant requested for judgement vide a letter addressed to the tribunal dated 18th January, 2022. Before the dust settled, the Respondent filed on 11th February, 2022 a Statement of Defence dated 24th January, 2021 and denied every claim without filing any evidence or documents to support the denial.

Processing The Suit. 4. In an attempt to set a date for hearing the suit, the Tribunal on the mention date of 15th December, 2022 made the following orders:1. That the Respondent be and are hereby ordered to file list of documents and witness statements within 30 days.2. That the matter be mentioned on 17th May, 2023 for further directions.This order was extracted by the Claimants on 16th January, 2023 and served upon the Respondents.

5. On the next date of mention which had been set for 7th June, 2023, the Respondents failed to appear and the Tribunal considered the Affidavit of Service of David Muema sworn on 24/5/2023 filed on 26/5/2023 and Affidavit sworn on 9/5/2023 filed on 12/5/2023 and directed/ ordered as follows:1. That the matter is considered ripe for hearing and that it would proceed without documents and Witness Statements by the Respondent since it seems that the Respondents do not have any or they have just lost interest in the case.2. Hearing was set for 6th September, 2023 and the Claimants were directed to issue Notice to the Respondents.

6. On 6/9/2023, the advocate of the Claimant stated that they are unable to proceed with the hearing because the Claimant was out of the country and that there is a problem in the internet connectivity. On this note, the hearing was pushed to 5th October, 2023.

7. Given the reluctance of the Respondents for a long time to appear during the mentions, on 6/12/2023, the Tribunal ordered the Claimant to file and serve Written Submissions within 14 days and the Respondent to file and serve their Statement of Accounts and Written Submissions within 14 days of service by the Claimant. It further gave a mention date of 23/1/2024 to confirm compliance.

8. Come 23rd January, 2024, the Claimants confirmed that they filed and served their Written Submissions dated13. 12. 2023 on 19. 12. 2023 and prayed for a judgement date. On the same date, the Respondents had not filed and served their Written Submissions.

Analysis. 9. Having had the benefit to toothpickly read through the Tribunal’s records, we note that apart from filing a Memorandum of Appearance dated 24th January, 2021 and a Statement of Defence which is full of mere denials, the Respondent never responded to any of the subsequent Tribunal orders despite service.We further reviewed the Affidavits of Service by one David Muema dated 14th August 2023 and 13th October, 2023 and we are satisfied that the services were proper based on the provisions of Order 5 Rule 15 which provide:“1. The Serving Officer in all cases in which summons has been served under any of the foregoing rules of this order shall swear and annex or cause to be annexed to the original summons an Affidavit of service stating the time when and the manner in which summons was served and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons."Service was effected twice upon the Secretary of the Respondent who was known personally to the process server. We therefore declare that the Claimants document were duly served upon the Respondent.

10. In the absence of the Respondents evidential defence, the Tribunal is left to determine whether the Claimant has established his Claim and if so whether he is entitled to refund and the attendant reliefs?

11. We have considered the Claimant’s Statement of Claim and the attendant bundle of documents which detail that he was a member of the Respondent up to 12th January, 2021 when he withdrew his membership in writing from the Sacco. The Sacco acknowledged the hand-written letter on the same date. The Claimant attached his pay slip for December 2020 which showed that his Comoco Sacco Monthly savings stood at Kshs. 401, 500/=.

12. The Written Submissions of the Claimant narrated the entirety of the Claim and invited the Tribunal to consider the provisions of Sections 107 and 119 of the Evidence Act Cap 80 Laws of Kenya which we note we are not bound by as it determined the existence of indebtedness of the Respondent to the Claimant. A cursory look at the Respondent’s statement of Defence gives an impression that there is no arguable defence. The Respondents compounded their defence by lethargically failing to turn up during mention dates, hearing dated and completely failing to file and serve defence documents that include Written Submissions. On this note, we find that on a balance of probability, the Claimant has demonstrated that the Respondents owe him Kshs. 401,500/=.

13. In view of the foregoing, judgement is hereby entered in favour of the Claimant against the Respondent as follows: we find in favour of Claimant against Respondent and;

a.The Respondents are ordered to refund to the Claimant his savings and shares of Kshs. 401,500/= with interest at the Tribunal’s interest rates from the date of filing this claim refund of Kshs.401,500/=.b.That the Claimant shall have the costs of this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF MAY 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 23. 5.2024Hon. Beatrice Sawe Member Signed 23. 5.2024Hon. Fridah Lotuiya Member Signed 23. 5.2024Hon. Philip Gichuki Member Signed 23. 5.2024Hon. Michael Chesikaw Member Signed 23. 5.2024Hon. Paul Aol Member Signed 23. 5.2024Tribunal Clerk JonahNo appearance by parties.Judgment delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 23. 5.2024