Mwijuma v Jitegemee Sacco Society Limited (Tribunal Case E023 of 2025) [2026] KECOPT 284 (KLR) (30 June 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE CO-OPERATIVE TRIBUNAL AT MOMBASA** **TRIBUNAL CASE NO. E023 OF 2025** **(Coram: Hon. J. Mwatsama- Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)** **MWINYI SALIM MWIJUMA……...................................................CLAIMANT** **-VERSUS-** **JITEGEMEE SACCO SOCIETY LIMITED……………………....... RESPONDENT** **JUDGEMENT** 1. The Claimant instituted this claim dated 7th August 2025 seeking refund of his deposits and savings held by the Respondent Sacco. The Claimant prays for: 1. Kshs. 309,602.00 being refund of his deposits and savings; 2. An order directing the Respondent to provide a statement of account in respect of the Claimant's Account; 3. Costs of the suit; and 4. Any other relief that the Tribunal may deem fit and just. **The Claimant's Case** 1. The Claimant averred that he was a member of the Respondent Sacco and made contributions during his membership. He further stated that he withdrew from the SACCO in the year 2023 and thereafter sought refund of his deposits. The Claimant contended that despite a demand made through his advocates by a letter dated 21st January 2024, the Respondent failed to refund the amount due. The Claimant further averred that following the demand, the Respondent made a partial payment of Kshs. 10,000.00 and advised him that the balance would be processed. In support of his claim, the Claimant produced 1. a demand letter dated 21st January 2024 and 2. a pay slip showing accumulated deposits amounting to Kshs. 319,602.00 **The Respondent's Case** 1. The Respondent vide the Statement of Defence dated 1st September 2025, admitted that the Claimant was a member of the Sacco but denied that he was entitled to the amount claimed. The Respondent contended that it has filed Mombasa Employment and Labour Relations Court Petition No. E006 of 2022., Jitegemee Sacco Society Ltd V County Government of Mombasa against the Claimant's employer for recovery of unremitted deductions and maintained that the present claim had been filed prematurely owing to the financial challenges occasioned by the employer's failure to remit members' deductions. In its written submissions, the Respondent acknowledged that the Claimant was entitled to withdrawable deposits but contended that the amount due was Kshs. 307,202.00 as reflected in a statement of account allegedly dated 17th February 2026. **Issues for Determination** 1. The issues for determination are: 2. Whether the Claimant has proved entitlement to Kshs. 309,602.00? 3. Whether the Claimant is entitled to an order directing the Respondent to provide a statement of account? 4. What orders should issue as to costs? **Analysis and Determination** 1. The Tribunal has considered the pleadings, documents and written submissions of the Claimant dated 2nd March 2026 and the Respondent dated 1st April 2026 on record. The Tribunal is guided by the decision in **Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR** where the Court of Appeal stated that; **“*The burden of proof rests upon the party who would fail if no evidence at all were tendered”***. The Tribunal must therefore determine whether the material placed before it establishes the Claimant's entitlement to the reliefs sought. The Claimant produced a pay slip showing accumulated deposits amounting to Kshs. 319,602.00 Although the Claimant prayed for Kshs. 309,602.00, the documentary evidence supports the existence of deposits exceeding the amount pleaded. The Tribunal is nonetheless bound by the relief sought and therefore considers the claim as pleaded. 1. The Respondent admitted the Claimant's membership and, in its written submissions, acknowledged that the Claimant was entitled to withdrawable deposits, disputing only the amount payable all this while the Respondent asserted that the Claimant's deposits stood at Kshs. 307,202.00 as per a statement of account dated 17th February 2026 The Tribunal is further guided by ***CMC Aviation Ltd v Cruisair Ltd* [No. 1] [1978] KLR 103**, where the Court observed that pleadings are not evidence and that matters pleaded must be proved by evidence. In the absence of the statement of account or any other documentary evidence supporting the Respondent's contention, the Tribunal is unable to place reliance on the figure of Kshs. 307,202.00 advanced in the Respondent's submissions. 1. Similarly, the Respondent's contention that the claim was premature by reason of pending proceedings against the Claimant's former employer does not extinguish the Claimant's entitlement to his deposits. No court order or other evidence was produced demonstrating that the Claimant's claim had been stayed or otherwise barred pending the determination of those proceedings. Accordingly, the Tribunal is satisfied that the Claimant has proved entitlement to the amount pleaded, namely Kshs. 309,602.00. As regards the prayer for production of a Statement of Account, the Tribunal notes that the Respondent itself relied on such a statement in its submissions but failed to produce it. In the circumstances, it is appropriate to direct the Respondent to furnish the Claimant with a statement of account. **Orders** 1. Accordingly, judgment is entered in favor of the Claimant against the Respondent as follows: 2. The Respondent shall pay the Claimant Kshs. 309,602.00 being refund of deposits and savings; plus, interest. 3. The Respondent shall furnish the Claimant with a Statement of Account relating to his membership account within thirty (30) days of this Judgment; 4. The Claimant shall have the costs of the suit. Judgement DATED and DELIVERED virtually at **Nairobi** this **30th day of June, 2026.** **Hon. J. Mwatsama Chairperson signed 30/6/2026** **Hon. Beatrice Sawe Member signed 30/6/2026** **Hon. Fridah Lotuiya Member signed 30/6/2026** **Hon. Michael Chesikaw Member signed 30/6/2026** **Hon. P. Aol Member signed 30/6/2026** Court Assistant – Mutai Khatib Advocate for the Claimant – No appearance Ms. Gatimu Advocate holding brief for Mwanzia Advocate for the Respondent. **Ms. Gatimu;** We pray for 30 days stay of execution. **Tribunal order;** 30 days stay of execution granted. **Hon. J. Mwatsama Chairperson Signed 30/6/2026**