[2024] KECPT 210 (KLR)

Mwendwa v Transcom Co-operative Society Ltd (Tribunal Case 143 of 2018) [2024] KECPT 210 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 210 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 143 of 2018

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

March 7, 2024

Between

Dorcas Mwendwa alias Njagi Dorcas Mwendwa

Claimant

and

Transcom Co-operative Society Ltd

Respondent

Judgment

1. The Claimant was seconded from KRA to NTSA in July, 2014 and she became a member of the Respondent with membership No. 3666. According to her statement of Claim dated 16th April, 2018, she stated that her employer continued to deduct and remit Kshs, 1000/= per month to the Respondent until the time she withdrew membership on 17th February, 2016.

2. It is her statement that by the time she withdrew her membership, her shares held by the Respondent was Kshs, 300,100/= and that she has no loans with them.

3. When the Respondent did not refund the amounts as demanded, the Claimant filed her statement of Claim on 20/4/2018 and prayed for the following orders:a.A refund of Kshs. 300,100/= inclusive of deductions made by NTSA and remitted to the Respondent up to February, 2016. b.Interest on (a) above at court rates.c.Cost of the Claim.In support of the Claim, the Claimant filed a Verifying Affidavit Application dated 17th April, 2018, a List of Documents, Letter of Withdrawal dated 17th February, 2016 and copy of Identity Card.

4. In response to the claim, the Respondents filed a Statement of Defence dated 30th May, 2018 on 4th June, 2018 and denied that they owe the Claimant the stated amount. However, on the other side of the mouth, the Respondent stated that it is entitled to deduct from the Claimant’s shares Kshs, 5000/= being institutional shares and Kshs. 1000/= on account of closure fees before arriving at the total amount of shares due to the Claimant. The Respondent did not file any Witness Statements, List of Documents or any other evidence to support their Defence.

5. Bases on the denials by the Respondent in the Statement of Defence, the Claimant filed a Notice of Motion Application dated 17th October, 2018 and anchored it under order 36 rule (1), order 15 (b) and (d) of the Civil Procedure Rules 2010, section 1A, 1B and 3(a) of the Civil Procedure Act. This Notice of Motion prayed for the following orders:1. That the Respondents statement of Defence dated 30th May, 2018 be struck out.2. That Summary Judgement be entered in favor of the Claimant against the Respondent.3. That the Respondent be condemned to pay costs of this Application.

6. In support, the Claimant filed an Affidavit sworn by M/s Mutundu Priscilla Wanjiru and an Affidavit of Service Sworn by one Robert Nzyoka who is an authorized Court Bailiff.

7. The Tribunal started to process the Notice of Motion Application by directing the Claimants to serve the Respondent. For over 2 years, the Tribunal gave several mention dates for parties to prosecute the case. However, at the mention date on 28th September, 2021, the parties told the Tribunal that they had started negotiations and prayed to be granted 30 days to see whether they could record a consent. The Tribunal granted the prayer and directed that the matter be mentioned on 3rd April, 2021 to confirm compliance.

8. On several mention dated that is, 4/2/2021, 9/3/2021, 21/4/2021, 29/7/2021 and 23/3/2022, the advocates for the Claimant kept telling the Tribunal that the Respondent had been paying some money to the Claimant. More specifically on 23/3/2022, the Tribunal was told by Mr. Muriuki being the Advocate of the Claimant that the total amount paid by the Respondent totaled Kshs. 100,000/= leaving a balance of Kshs. 200,000/= to be paid.

9. Again when the matter came up for mention on 11/9/2023, the Claimant stated that the Respondent had paid the Claimant remaining with a balance of Kshs. 40,000/=. Since the negotiation has taken too long to be concluded, the Claimants prayed for a hearing date.

10. In response, the Tribunal gave the following directions;1. That the matter being one of refunds, parties to file and serve Written Submissions on the balance due.2. Claimant to file and serve Written Submissions within 21 days while the Respondent is granted upon service 21 days upon service to file and serve Written Submissions.There directions were extended for a further 21 days during the mention date of 21/8/2023 on the request by the Respondent’s Advocates.

Analysis. 11. Having read through the statement of Claim, the Notice of Motion and having examined the Claimant’s Supporting documents together with the Respondent’s Statement of Defence and having read the oral statements recorded in the Tribunal’s file, we have come to the conclusion that the issues fir determination are:1. Whether the Response can be Stuck out.2. Whether the Claimant is entitled to a refund of the balance of the money which is unpaid?

Issue 1 Whether the Respondent’s Defence can be struck out? 12. Reading through the Respondents’ Statement of Defence, one can easily notice on the face of it that the Defence is a sham littered with denials and nothing to proof that they are entitled to Kshs. 5000/= being what they have termed as institutional shares deductions and Kshs. 1,000/= account closure fees.Without a doubt, it is our view that the Respondent’s Defence fits very well the description provided under order 2 rule 15 which states as follows:1. At any stage of the proceedings, the court may order to be struck out or Amended any pleadings on the grounds that;a.It discloses no reasonable cause of action or Defence in law orb.It is scandalous, frivolous or vexatious orc.It is otherwise an abuse of the process of the court.

13. Since the Defence does not raise any triable issue and the fact that the Respondent has been paying the Claimant albeit by installment. We hereby strike out the Defence with costs to the Claimant.

Issue 2 Whether the Claimant is entitled to a refund of the balance of the money unrefunded. 14. As recorded in the Tribunal file, we noted that the Claimant’s advocate has been confirming to the Tribunal during mention dates specifically on 23/3/2022 and on 11/9/2023 that the Respondent has been paying the claimed sum in installments. This amounts to admission of the claim and therefore we invoke the provisions of order 13 rule 1 of the Civil Procedure Rules which state that;“Any party to a suit may give notice by his pleadings or otherwise in writing, that he admits the truth of the whole part of the case of any other party.”By paying the claimed sum in installments, it is a demonstration that the Respondent has admitted that it owed the Claimant the amount stated in the Statement of Claim.

15. Consequently, it is our finding that the Claimant is entitled to the refund.

16. On this note, this is the judgement of the Tribunal.1. The Notice of Motion Application dated 17th October, 2018 is merited.2. That the Respondent’s statement of Defence is hereby struck out and Summary Judgement is hereby entered in favor of the Claimant against the Respondent for the Kshs. 205,060/=.3. Costs are awarded to the Claimant.

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 advocate holding brief for Mbichi Mboroki advocate for Claimant.No appearance for Respondent.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024