[2025] KECPT 170 (KLR)

Ndeleva v Manatwa Sacco Society Limited (Tribunal Case 992/E1051 of 2022) [2025] KECPT 170 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 170 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 992/E1051 of 2022

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

February 27, 2025

Between

Justina M. Ndeleva

Claimant

and

Manatwa Sacco Society Limited

Respondent

Judgment

1. The Claimant was a member of the Respondent Sacco under Membership No.105/2008, and on or about 10th May 2022 the Claimant duly terminated her membership with the Respondent but the Respondent failed and or refused to refund the Claimant her savings of Kshs. 171,590/=

2. The Claimant avers that the Respondent is mandated by the societies by-laws to refund the Claimant her savings within a period of 60 days after issuance of the notice of withdrawal of membership, a fact which the Respondent had advised the Claimant.The Claimant filed her Statement of Claim dated 15th December 2022 for a refund of her savings amounting to Kshs. 171,590/= with interest from the time of expiry of the withdrawal notice which was 4th July 2022 until payment in full.

3. The Respondent filed their Defense dated 10th February 2023 stating among others:i.That they only owe the Claimant Kshs 161,590/=ii.That the Claimant was refunded Kshs 10, 000/= leaving a balance of Kshs 161,590/=The matter being one of refunds, the Tribunal directed on 11th October, 2024 that the matter be canvassed by way of written submissions. The Claimant filed their written submissions dated 30th July, 2024 stating among others:a.That the Claimant voluntarily withdrew membership on or about 10th May 2024 and as at the time of withdrawal she had savings amounting to Kshs. 171,590/=b.That the Claimant duly notified the Respondent about the withdrawal and gave two months' notice as per the Respondent’s by-lawsc.That the Respondent did not make the refund within the stipulated timeline, which necessitated the filing of the claimd.That the Respondent is duty bound to refund the sum owed plus the interest Claimede.That the Claimant never received the Kshs. 10,000/= claimed was refunded by the Respondent via M-pesa number 0721613865 and Section 109 of the Evidence Act put the burden of proving that the payment was done on the Respondentf.That the Respondent did not adduce any certified M-pesa statement evidencing payment of the alleged Kshs. 10,000/= to the Claimant and there was further no evidence on record that the Claimant was the owner of the purported M-pesa number 0721613865g.That the Respondent adduced evidence of a purported cheque from Family Bank bearing the Claimants name but the cheque does not have any probative value to the case as it goes contrary to the Respondent’s witness statementh.That it is trite law that evidence which goes contrary to one's pleadings has no probative value.

4. The Respondents on their end filed their written submissions dated 8th November, 2024 stating among others that:a.That the claim should be dismissed as efforts to refund the Claimant’s savings are ongoing and within the applicable legal frameworkb.That the Respondent has already refunded the Claimant Kshs. 10, 000/=, however financial limitations and the structured refund policy has prevented the immediate liquidation of the entire amountc.That the Claimants claim for interest is unsubstantiated by law or the Respondents' by-lawsd.That the Respondent has had a discussion with the Claimant about a phased refund schedulee.That the Respondent’s by-laws do not explicitly stipulate the payment of interest on refunds to members and as such the request for 20% interest is untenablef.That the Claimants demand for an immediate full refund is premature as the Respondent has not refused to refund the Claimant’s contribution, rather it has proposed a reasonable installment plan in recognition of its financial constraintsHas the Claimant sufficiently proved her claim on a balance of probabilities and is she entitled to a refund?

5. We note that the Claimant did properly withdraw from the Respondent by writing a letter of withdrawal dated 10th May, 2022 for a refund of her savings formally, and the Respondent has not produced anything to show that there is a standard format for notice of withdrawal from the SACCO, and as such, the said letter by the Claimant constitutes a proper Notice of Withdrawal and request for refund.

6. The Respondent has not pleaded any liability on the part of the Claimant in terms of loans and guarantees to other members, and in as much as we sympathize with the Respondent’s financial situation, we are also alive to the fact that a member has a right to her deposits. The Co-operative Societies Act is clear on the concept of voluntary membership to a Co-operative Tribunal, and as long as a Co-operative society is in operation, it is expected to honor its obligations to its members. The Legal Notice No. 82 (The Sacco Societies Act) at Section 21 (6) is also clear to the effect that:“A non-deposit-taking Sacco society shall refund to a member the amount accumulated in the member's non-withdrawable account within sixty days of receiving the written notification of the member to withdraw from membership of the Sacco society.”

7. Given that the Claimant claim is for Kshs. 171,590/= and the Respondent has not adduced any evidence to show how they refunded the Claimant Kshs. 10,000=, this Tribunal is inclined to believe that the Respondent owes the Claimant Kshs. 171,590/= in refunds.Final Ordersi.The Claimant’s Statement of Claim dated 15th December, 2022 succeedsii.Judgment is entered in favour of the Claimant for the sum of Kshs. 171,590/= with costs and interest at Tribunal rates from the date of filing.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 2.2025HON. PAUL AOL - MEMBER SIGNED 27. 2.2025Tribunal Clerk MutaiNo appearance by the parties.Hon. B. Kimemia Chairperson Signed 27. 2.2025