[2023] KECPT 814 (KLR)

Obwocha v Metropolitan National Sacco Limited (Tribunal Case 257 (E307) of 2022) [2023] KECPT 814 (KLR) (27 April 2023) (Judgment)

Neutral citation: [2023] KECPT 814 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 257 (E307) of 2022

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

April 27, 2023

Between

Mary Kwamboka Obwocha

Claimant

and

Metropolitan National Sacco Limited

Respondent

Judgment

1. The Claimant filed a Statement of Claim dated 9. 5.2022 filed on even dates, Witness Statement and List of Documents on 9th May 2022 seeking for the refund of her contributions/savings amounting to Kshs. 448,200/= costs of this suit, interest and any other relief that may be deemed fit and just to be granted.

2. The Claimant state that she became a member of Metropolitan National Sacco Limited in 2003 as Member No. 12542.

3. On 25th January 2020 the Claimant withdrew from being a Member of the Respondent vide a hand-written letter which was tendered as evidence. ( Paragraph 6 of the Claimants Statement States:“ on or about 25th January 2020, the claimant issued a Notice of Withdrawal of Membership to the Respondent and further sought a refund of all her deposits and shares in full in that regard. Accordingly and at the same time, the claimant also submitted to the Respondent evidence from the Teachers Service Commission (TSC) confirming that she did not have any outstanding Government liability.”Paragraph 6 and 7 of the Respondent’s Statement of Defence states:“ The Respondent denies the contents of paragraph 6 of the Statement of Claim and puts the Claimant to strict proof thereof. Further and without prejudice to the foregoing, the Respondent states that it has never received the Claimant’s Notice of Withdrawal. In fact, a close look at the Claimant’s list of documents is the alleged notice of withdrawal by the Claimant but the same is not stamped by the Respondent. if any notice of withdrawal of membership was ever received, a member is required to wait 60 calendar days after making a refund request in writing hence the Claimant needs to do so in compliance with the By-laws of the Sacco and its resolutions on the same.7. The Respondent further avers that upon submitting the withdrawal letter, and the same being received and stamped by the Respondent, one is expected to wait for 60 calendar days after making a refund request in writing hence the Claimant needs to do so in compliance with the By-laws of the Sacco and its resolutions on the same. “

4. Further, the Claimant state that the Respondent’s declined and/or neglected to refund her saving.

Respondent’s Defence 5. The Respondent opposed the claim vide a Statement of Defence dated 2nd June 2022 which was filed on 15th June 2022 together with the attendant documents.

6. The Respondent state that they did not receive the withdrawal notice because the one filed was not stamped by the Respondent.

7. The Respondent admitted that the Claimant’s contributions is Kshs. 426,300/= and not Kshs. 448,200/=.Further, the Respondent state that even if the withdrawal notice was received, they cannot refund her her deposit because the members of the Respondent through an Annual General Meeting held on 22nd January 2022 passed a resolution to schedule such refunds for two (2) years due to liquidity challenges facing the Respondent.

8. On 1st September, 2022, this Honourable Court entered into a partial judgment for the claim admitted of Kshs. 426,300/= in favour of the Claimants and directed the parties to dispose off the matter of the disputed sum of Kshs. 21,900/= by way of written submissions.

Analysis 9. The Claimant has filed a written submissions regarding the contested sum of Kshs. 21,900/= citing this Tribunal’s decision on Kezziah Kanini Muthara versus Metropolitan National Sacco Limited(2021)eKLR which states:“The balance of Kshs. 8,432/= is the contested amount, that forms the basis of this part. On their part, the Respondents argue that this amount consist of Share Capital, which is non- refundable. This Tribunal has been invited to assume this fact, as there was no proof of this provision in the Sacco’s By-laws. Section 107(1) of the Evidence Act Cap 80 of the Laws of Kenya casts the burden of proving a fact on the one that alleges. This burden has not been discharged by the Respondent in view of the disputed amount, and it must thus fail. We therefore find and do hold in favour of the Claimant that she is entitled to her full deposit of Kshs. 309,650/-“.

10. The Claimant further submitted on whether the Respondent’s Annual General Meeting resolution to cap the refund of the claimant contribution/savings to two (2) years by citing this Tribunals decision on Weldon Rotich versus Metropolitan National Sacco Society Limited(2021)eKLR.

11. On the other hand, the Respondents did not file a written submission but instead filed a statement of account for Mary Kwamboka Obwocha which shows that as at 14th April 2022, the amount in her account was Kshs. 426,300/=.

Conclusion 12. Interlocutory Judgment entered on 1st September 2022 is upheld. Judgment in favour of Claimant against Respondent for Kshs. 426,300/=

13. Plus cost and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023Tribunal Clerk Jemimah/JonahKorir advocate holding brief for Thimba advocate for the Respondent.Mary Kwamboka- No appearanceKorir advocate – We pray for 30 days Stay of Execution.Tribunal:30 days Stay of Execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023