[2025] KECPT 154 (KLR)

Njau v Metropolitan National Sacco (Tribunal Case 926/E1036 of 2023) [2025] KECPT 154 (KLR) (30 January 2025) (Judgment)

Neutral citation: [2025] KECPT 154 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 926/E1036 of 2023

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

January 30, 2025

Between

Jane Karimi Njau

Claimant

and

Metropolitan National Sacco

Respondent

(Coram: Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

1. According to a photocopy of a pay slip for January 2021. The Claimant was employed by Teachers Service Commission as a teacher and without any evidence of her averment in her Statement of Claim. That she was a member of the Respondent. However, we are called upon to make a judgment regarding a refund of Kshs. 272,596. 10/= which she argue that the Respondents owe her.

2. The Claimant filed a Statement of Claim dated 20th November, 2023 on 21st December, 2023 seeking for judgment against the Respondent for:a.The sum of Kshs.262,596. 10/=b.Costs of the suit and interest until payment is made in full.c.Any other relief so deemed appropriate by the Honourable Tribunal.

3. To support her claim, the Claimant filed a list of witnesses , a List of Documents and its annextures all dated 20th November, 2023.

4. On 20th February, 2024, M/s Gitonga Muriuki & Company Advocates entered appearance on behalf of the Respondents and filed an application of Defence dated 4th March 2024.

5. In support of the Defence, the Respondents filed a List of Witnesses and a List of Documents all dated 8th August 2024.

6. When the matter came up for Pre-trial directions on 2. 7.2024 , the parties were present and by consent they agreed to canvass the issues through written submissions.

7. On 6. 11. 2024, each of the parties confirmed that they have complied in filing and service of the written submissions.Claimant’s CaseThe Claimant submitted that she was a member of metropolitan Sacco society limited until when she wrote a withdrawal letter dated 18. 3.2021 and filed a resignation form provided by the Sacco on the same date.On the same letter dated 18. 3.2021 she requested for fund of her shares which stood at 272,596. 10/=. at the same time, she wrote to Teacher Service Commission to stop further remittances to the Respondent from her salary.She concluded by stating that she has not been refunded her shares.

Respondent’s Defence 8. The Respondent denied the claims made by the Claimant in the statement of claim and made a raft of Defence like under paragraph 10 of the Defence, the Respondents state as herein:“That the alleged notice of withdrawal/demand issued or made by the claimant and which is denied does not conform to the statutory notice envisaged under the Cooperative society’s Act, Rules and the Respondent’s by-laws.”Further, the Respondents narrated the turmoil and financial challenges that the Sacco is going through as a result of the overwhelming applications from members who want to withdraw from the Sacco.AnalysisWe have read through the documents on record filed by the Claimant and the Respondent , similarly we have read through the written submissions of both parties.On the onset, the claimant failed to file her member Statement of Account in the Tribunal which would have indicated to us her dealings with the Respondents. The member statement account would show how much is credited to her account every month by the Respondent through the cheque off- system of Teacher Service Commission. Further it would show how much the Sacco has advanced to her in forms of loans any loan interest or savings interest earned. In the end the account will show the total credits and the debits from the beginning to the end.

9. The claimant filed a photocopy of her pay slip for January 2021 and yet she withdrew from the Sacco in March, 2021 whatever happened during the two months in between is not disclosed. However, we advise against the use of pay slips to any amount of money owed by a Sacco to her members.

10. On the same breath, the Claimant submitted in her written submissions dated 13th November 2024 under clause B that:“All records in both the claimant and the respondent’s possession including respondent’s statement of account correspondences and the Respondents own admission that the claimant is owed”After searching for these records in our e-filing system and in the physical file of this case, there is nowhere the Claimant or the Respondent has filed the member Statement of Account. Further we have not come across any correspondence where the Respondent wrote to the Claimant to confirm that they owe the Claimant the amount claimed.

11. If the Claimant is in possession of these records and failed to file and list them in the List of Documents, then t is wrong to submit on falsehood knowing that the Tribunal rely on evidence to proof any claim.

12. Regarding the claimant’s submission that the Respondent admitted that the owe the Claimants and/or have not denied or controverted the claim.On this, we are amazed and wonder whether the claimant read through the Defence and the written submissions of the respondents. Even then we advice the claimant that reading through the Defence and the submissions we did not find an unequivocal admission of the claim by the Respondent in the statement of Defence.

13. While in the written submissions, the Respondent dwelt so much on the financial challenges that the Sacco is going through.The only paragraph in the Respondent’s written submissions which looks like semblance of admission yet it is not an admission in law is on paragraph 18 which reads:“In conclusion and on a without prejudice basis(emphasis ourselves) should the tribunal find that there is any money owed to the claimant and which is denied (emphasis ours) the respondent pleads with the tribunal that it can only manage a payment schedule and or to settle the sum in terms of Kshs. 2000/= to Kshs. 5000/= per month and this is due to the numerous cases of withdrawal by its members that it requires and it is necessary to have a more structured approach to handle the outstanding matters/cases failure to which the existence of the society is uncertain.”Anybody reading the above statement will conclude that it is not an admission and we find so.

14. In conclusion, the Tribunal wish to state that we did not find any evidence from the Claimant in order to enable us to consider and find whether the Claimant’s claim is factual or not. The Respondents denied the claim and attached legal authorities to have the case dismissed with costs.

15. Without proof of evidence by the claimant as discussed in the foregoing paragraphs, we find that the claim cannot be sustained. Consequently, the Statement of Claim dated 20. 11. 2023 is found to be without merit and is dismissed with no orders as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. Hon. J. Mwatsama Deputy Chairperson Signed 30. 1.2025Hon. Beatrice Sawe Member Signed 30. 1.2025Hon. Fridah Lotuiya Member Signed 30. 1.2025Hon. Philip Gichuki Member Signed 30. 1.2025Hon. Michael Chesikaw Member Signed 30. 1.2025Hon. Paul Aol Member Signed 30. 1.2025Tribunal Clerk MutaiJane Njau presentMetropolitan Sacco – No appearanceHon. J. Mwatsama Deputy Chairperson Signed 30. 1.2025