[2025] KETAT 116 (KLR)

Ogachi v Indima-nje Co-operative Society (Tribunal Case 355/E488 of 2023) [2025] KETAT 116 (KLR) (30 January 2025) (Ruling)

Neutral citation: [2025] KETAT 116 (KLR)

Republic of Kenya

In the Tax Appeal Tribunal

Tribunal Case 355/E488 of 2023

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

January 30, 2025

Between

Jacob Ogachi

Claimant

and

Indima-nje Co-operative Society

Respondent

Ruling

Brief Facts. 1. The Claimant is a member of the Respondent having joined the SACCO and was allocated membership No. 301717 a fact which the Respondent confirmed.That vide a letter dated 8th April, 2022, the Claimant gave a sixty (60) days’ notice to withdrawal his membership from the Respondent and notified SACCO to refund him Kshs.534,644/= being the amount of his savings/deposits.It is not in dispute that after the expire of sixty (60) days’ notice, the Respondents did not refund the Claimant the amount as stated.

The Case 2. The Claimant approached this Tribunal by filing a Statement of Claim dated 22/6/2023 on 4th July,2023 against the Respondent seeking for the following orders: -a.Refund of Kshs.534,644. b.Cost.c.Interest on (a) and (b).d.Any other relief that the Tribunal may deem fit to grant.Together with the statement of claim the Claimant filed on 4/7/2023 a Verifying Affidavit, List of Witness, one Witness Statement and a List of filed Documents all dated 22nd June, 2023.

3. In response the Respondent through the Chairman filed a Statement of Defence dated 31st July, 2023 and under paragraph 4 of the Defence the Respondents stated as follows: “The Respondent denies the contents in paragraph 7-8 as it avers that the total share refund payable is Kshs.509,664/= and not Kshs.534,644/= because the share capital amounting to Kshs. 25,000/= is non-re-fundable further and without prejudice to the foregoing the Respondent denies that they have failed nor neglected to refund the claimant and the Respondent avers that they have added the Claimants in the payment schedule and he will be repaid as per schedule”.

4. Upon receipt of the admission as confirmed in the Respondent’s Statement of Defence, the Claimants filed a Notice of Motion application dated 21/8/2023 under a Certificate of Urgency seeking for:-1. Spent.2. That judgement be entered on admission in the sum of Kshs. 509,644/= in favour of the Claimant against the Respondent.3. Cost be provided for concomidantly; the Claimant swore a Supporting Affidavit dated 21/8/2023 which was filed on 22/8/2023 and reiterated the grounds stated in the Notice of Motion.

5. On 23/8/2021, the Tribunal considered the Claimants Notice of Motion Application dated 21/8/2023 filed under Certificate of Urgency and ordered as follows: -1. That the Notice of Motion Application dated 21/8/2023 to be served on the Respondent.2. That the Respondent to file and serve the Claimants within 7 days from today.3. That the matter being one of refunds the same be canvassed by way of written submissions.4. That the Claimant to file and serve written submissions 14 days from today.5. That the Respondent to file and serve written submissions 14 days upon service.6. Mention to get a judgement date on 16/11/2023.

6. On. 16/11/2023, the Claimants confirmed that they served the Respondent with the Notice of Motion application dated 21/8/2023 and here not received response from the Respondents.The Tribunal directed that the orders given on 23/8/2023 should be complied with.

7. When the matter came up for mention on 28/11/2024 the Claimant confirmed that he has not received any response nor any W/sub from the Respondent.Further on 5/12/2024 the Respondents again failed to comply with the orders given by the Tribunal on 28/8/2024 that prompted the Tribunal to write this judgement.

Analysis 8. Reading through the facts of this matter, it is not in doubt that the Claimant is a member of the Respondent. At the same time, he held some deposits/shares with the Respondent, a fact which was confirmed by the Respondent in paragraph 4 of the Statement of Defence.

9. Prompted by the Respondents admission that they owe Kshs.509,644/= to the Claimant, the Claimant exercised the provision of Order 13 Rule 2 of the Civil Procedure Rules 2010 which provided that:-“Any party at any stage of suit where admission of facts has been made, either on the pleadings or otherwise, apply to the Court for such judgement or order as upon such admissions as he may be entitled to, without waiting for the determination of any other question between the parties and the Court may upon such application make such order or give such judgment as the Court may think just”.A close examination of the Respondent response to the demand letter dated 8th April, 2022 from the Claimant show that all along the Respondents admitted that they owed the Claimant and are willing to refund him. More specifically under the middle of paragraph 3 of the statement of Defence the Respondent stated “The Respondent avers that they responded to the demand letter sent by the Claimant’s Advocate confirming that they do wish to refund the Claimant his shares, however, they are not capable of doing so immediately due to the liquidity issues at the SACCO”.

10. From the facts in the file record, we find that all along there have been no specific demands or referrals by the Respondents about the Claimant’s claim.By its own admission in the statement of Defence the Respondent made a clear and unequivocal admission that they owe Kshs. 509. 644/= which leave no room for doubt in this regard.The Tribunal is guided by the decision of the Court in the case of Cassam V. Sachania (1982) KLR 191 where the Court had this to say on the issue of admissions.“The Judges direction to grant judgement on admission of fact under the order is to be exercise only in plain cases where the admission of fact are so clear and unequivocal that they amount to an admission of liability entitling the plaintiff to judgment”.In Choitram V. Nazari (1984) KLE 327 the Court emphasized this issue of admission by stating that: -“Admissions have to be plain and obvious as plain as a pikestaff and clearly readable because they may result in judgement being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning”.

11. Further, the Court went on in the care of 747 Freighter Conversion LLC V. One Jet One Airways Ltd. and 3 others HCCC No.445 of 2021 J. B. Havelock J. (as he then was) (RIP) stated that “In such clear admissions there is no point in letting a matter to go for a trial for there is nothing to be gained in a trial”.

12. In applying the law and the principles of admission in the instant case as quoted in the Judicial pronouncements, it is our finding that at the heart of the Notice of Motion application dated 21/8/2023 is the Respondents’ Statement of Defence and their response dated 30/5/2022 to the Claimant’s letter of demand dated 8/4/2022. The Statement of Defence not only admits the debt but also state that they have made a schedule of refunds of which they have added the Claimant and concluded by stating that he will be repaid as per the schedule.

13. We have perused through the schedule of members who are queued to be refunded their shares amounts and do not find the name of the Claimant although the Respondent stated that they have added his name to the list.

14. In addition, we have searched in the file records for an Acceptance Letter or Agreement written or signed by the Claimant that he accepted the Respondent’s proposal and did not find any. This is our view does not create vagueness or ambiguity and therefore the admission remains clear, plain and unequivocal. We therefore conclude that in line with the provisions of Order 13 Rule 2, the Claimant is entitled to entry of judgement for the amount admitted of Kshs.509,644/=.

15. Flowing from the foregoing discussions on the law and the Judicial pronouncements regarding the Respondent’s admission, it is our finding that the Notice of Motion application dated 21/8/2023 is merited.Accordingly, judgement is hereby entered in favour of the Claimant against the Respondents for the refund of Kshs.509,644/= together with interest at the Tribunal rate from the date of this judgement until when the amount is paid in full.The Claimant is also awarded the costs of Tribunal application.

RULING 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 MutaiNelly advocate holding brief for Wambui advocate for Claimant- PresentIndima-Nje cooperative society -Respondent – No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 1.2025