[2024] KECPT 240 (KLR)

Mwangi v Metropolitan National Sacco Society Limited (Tribunal Case 470 (E239) of 2021) [2024] KECPT 240 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 240 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 470 (E239) of 2021

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

March 7, 2024

Between

Anna Mumbua Mwangi

Claimant

and

Metropolitan National Sacco Society Limited

Respondent

Judgment

Claimant’s Case 1. Claimant’s case is from the Statement of Claim dated 6. 10. 2021 Claimant’s submissions dated 9. 10. 2021, witness statement by the Claimant dated 1. 10. 2021 and Claimant’s documents under cover dated 6. 10. 2021. In the Statement of Claim, the Claimant is praying for judgment against the Respondent for Kshs. 900,000/= plus interest at court rates and cost of the suit.In her witness statement the Claimant avers that in 2015 she deposited Kshs. 1,000,000/= with the Respondent for a period of one year. The agreed interest rate for the fixed deposit of Kshs. 1,000,000/= was 13% per annum. She states that in 2016 she got her deposits plus interest she renewed the fixed deposit account with Kshs. 1,000,000/= with the same terms. She again collected the Kshs. 1,000,000/= with interest in 2017. This trend continued up to the year 2020. She states that the Respondent failed to honour the terms of the deposit in 2021 after renewing her deposit in April 2020. She claims the Respondent was unable to pay back the deposits citing poor financial position and promised to repay in 4 instalments from 28th April 2021 to 18th May 2021. This promised to repay was not honoured by the Respondent in full since only Kshs. 200,000/= was repaid in May 2021. A further promise was made to repay the Claimant in 3 equal instalments of Kshs. 300,000/= between 25. 5.2021 and 4th June 2021. At the time of filing this case, the Claimant had not received the Kshs. 900,000/= from the Respondent, hence the claim.The Claimant has produced the following documents in support of her claim.i.Application to open Fixed Account dated 3. 4.2019. ii.Application to open Fixed Deposit Account dated 6. 4.2020. iii.Promissory notes by the Respondent.iv.Claimant’s Demand Letter on her deposit dated 6. 10. 2021. In her written submissions, the Claimant states that she was a member of the Respondent.The Claimant states that she has provided enough documents to prove her claim.

Respondent’s Case 2. The Defence case is contained in the Statement of Defence dated 22nd November 2021 and Respondents written submissions dated 8. 3.2023. In their Defence, the Respondent admits that the Claimant was their member.The Respondent admits the Claimant opened fixed deposits of Kshs. 1,000,000/= but denies that the Respondent failed to return the deposits in 2021. The Respondent denies that the Respondent was repaid Kshs. 200,000/=and has failed to repay the balance.The Respondent admits that a Demand Letter was made by the Claimant but states that the claim was of no consequence, hence no action was taken.In the Respondent’s written submissions dated 8. 3.2023. The Respondent avers that the Respondent by-laws as very specific on 60 days’ Notice of Withdrawal which they claim the Claimant did not honour.The Respondent maintain that no such Notice to Withdrawal was issued by the Claimant. The Respondent admits that it entered the Claimants name in the 2019 refunds schedule upon realizing the Claimants intention to withdrawal.The Respondent avers that there is an Annual General Meeting resolution whereby no refunds are being made for a period of 2 years as per 2022 Annual General Meeting resolutions due to liquidity challenges.The Respondent avers that the Claimants refund is put in abeyance as per 2022 Annual General Meeting resolutions. The Respondent avers that the Claimant’s current savings are clearly shown in her Statement of Account.The Respondent claims that the refund schedule was binding to the Claimant.

Analysis 3. We have interrogated the facts as provided by the Claimant and the Respondents and we are of the opinion that the Claimant has produced documents to support her claim.The FDI Application to open a fixed deposit produced by the Claimant have not been denied by the Respondent.Indeed we are of the opinion that the deposits made by the claimant are not contested by the Respondent.The Respondent assertion that the Claimant is bound the 2019 Annual General Meeting refund reschedule is noted but it can not be binding as alleged by the Respondent.The Respondent has cited the member’s Account’s statement as the document the Claimant should have used to support her claim but has not attached the same in their documents. It is claimed there was a resolution in 2022 Annual General Meeting to hold in abeyance all refunds but the Respondent has not produced any minutes to support the assertion.

4. We are convinced that the Claimant has proved beyond any reasonable doubt that the Respondent accepted her Kshs. 1,000,000/= as fixed deposits, a sum that her not been refunded to date.No evidence has been adduced to prove the Kshs. 200,000/= refund to the Claimant.We enter judgment in favour of the Claimant against the Respondent for:a.Kshs. 900,000/=.b.Costs and interest in the claim at Tribunal rates from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024Hon. Beatrice Sawe Member Signed 7. 3. 2024Hon. Fridah Lotuiya Member signed 7. 3.2024Hon. Philip Gichuki Member Signed 7. 3.2024Hon. Michael Chesikaw Member Signed 7. 3.2024Hon. Paul Aol Member Signed 7. 3.2024Tribunal Clerk JemimahMkamani holding for H.T. Associates for Respondent.No appearance for ClaimantHon. Beatrice Kimemia Chairperson Signed 7. 3.2024Mkamani- I pray for 45 days stay of executionOrder: 30 days stay of execution granted.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024