[2023] KECPT 1100 (KLR)

Nangunin v Metropolitan National Sacco Society Ltd (Tribunal Case 23 (E040) of 2023) [2023] KECPT 1100 (KLR) (Civ) (14 December 2023) (Judgment)

Neutral citation: [2023] KECPT 1100 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 23 (E040) of 2023

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

December 14, 2023

Between

Shadrack P Nangunin

Claimant

and

Metropolitan National sacco Society Ltd

Respondent

Judgment

Claimant’s Case. 1. The Claimant’s case is contained in the Claimant’s Statement dated 26/1/2023, Claimant’s List of Documents of 26/1/2023 and Claimant’s Witness Statement of 26/1/2023. The Claimant has filed evidence of his Letter of Share Refund dated 10/11/2023 claiming Kshs. 273,071. 10/=.The Claimant has also produced documents in his List of Documents to prove his Claim. In the Document’s List is the Letter of Withdrawal dated 10/11/2023 which mentions the Kshs. 273,071. 10/= figure.

2. In the Claimant’s Witness Statement dated 26/1/2023, the same Kshs 273,071. 10 is claimed and prayed for. In his Verifying Affidavit, the Claimant has owned up to his Witness Statement where again the figure of Claim is stated.In the entire proceedings, the Claimant has maintained his claim figure of Kshs. 273,071. 10/= a figure that is denied by the Respondent in their Statement of Defence.The Claimant has not yet provided the genesis of this figure of Kshs. 273,071. 10/=

Respondent’s Case. 3. The Respondent has based his case on Statement of Defence dated 17/2/2023 and Respondent Documents filed on 17/2/2023. In the Statement of Defence, the Respondent does not deny owing the Claimant but states that the refund should go as per the 2022 Annual General Meeting resolutions where all refunds were stopped due to liquidity problems.

4. The Respondent denies the figure of Kshs 273,071. 00/=. In his documents, the Respondent has filed the Claimant’s member Statement as evidence that the Claimant is owed money by the Respondent. As per the statement filed in court, the amount due to the Claimant as at 30/6/2022 is Kshs 253,071. 10/=. This figure is evidenced by the member’s statement as filed in the court portal.

5. We note that the Respondent has challenged the Claimant to provide evidence on the Kshs 273,071/= which is the amount claimed by the Claimant.The Claimant has not given adequate to prove the figure claimed. The Respondent has on the other hand provided a member statement of the Claimant showing that the amount refundable is Kshs 253,071. 10/= as at 30/6/2022.

6. We observe that the Claimant’s Letter of Request of Shares is dated 10/11/2022 about 5 months after filing of Statement of the member by the Respondent. But in the absence of any evidence to prove that the Kshs. 273,071. 10/= by the Claimant, this court is only compelled to award what is proved by way of members statement filed by the Respondent.

7. During the time of Writing this judgement, this office telephoned the Respondent’s advocate to file the current statement of the Claimant. The submitted statement reflected a closing deposit balance of Kshs. 253,071. 10/= as at 30/6/2022.

8. In the foregoing circumstances, this court finds in favour of the Claimant against the Respondent for Kshs. 253,071. 10/= plus costs and interest at the Tribunal rates from the date of filing this claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 14. 12. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 14. 12. 2023HON. BEATRICE SAWE - MEMBER SIGNED 14. 12. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 14. 12. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 14. 12. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 14. 12. 2023HON. PAUL AOL - MEMBER SIGNED 14. 12. 2023TRIBUNAL CLERK JONAHKINGARA ADVOCATE HOLDING BRIEF FOR KIMONDO MUBEA ADVOCATE FOR THE CLAIMANT.KIPTOON ADVOCATE FOR RESPONDENT – NO APPEARANCEHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 14. 12. 2023