[2023] KECPT 1058 (KLR)

Oloo (Suing as Representative of Over 2000 Retirees of Kenya Railways and Members of Reli Sacco) v Reli Sacco Cooperative Society Limited & another (Tribunal Case 369 of 2014) [2023] KECPT 1058 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1058 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 369 of 2014

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

November 30, 2023

Between

John Otieno Oloo (Suing as Representative of Over 2000 Retirees of Kenya Railways and Members of Reli Sacco)

Claimant

and

Reli Sacco Cooperative Society Limited

1st Respondent

Commissioner of Cooperative Development

2nd Respondent

Judgment

1. The matter for determination was filed by claimant who is suing as representative of over 2000 retirees of Kenya Railways and members of Reli Sacco. The claimant filed a Supplementary Statement of claim dated 27/8/2014 on 25/6/2015. The claimants claim that they were employees of Kenya Railway Cooperative between 1970 to 2005. At all times the claimants were members of Reli Sacco. They each contributed various amounts towards the Sacco. Upon retirement, the claimants withdrew and were entitled to their refunds. It is the claimant’s claim that having retired in different years, the Respondent has failed to pay them their shares, dividends and accrued interest.

2. Paragraph 8 of Supplementary Statement of claim aver different amounts were disbursed at different times. The claimant avers the Respondent purchased several properties;a.Dandora Residential Property.b.Kisumu Kanyakwar Project.c.Reli Towers ProjectThat despite raising substantial income from the projects, the Respondent has failed to pay claimant’s share dividends.Thus the claimant’s claim against Respondent is for;a.Refund of shares, accrued dividends plus interest at court rate to the claimants within 30 days from the date of the judgement.b.General damages for breach of contract.c.Interest on (a) and (b) above.d.Cost of this suit.e.Any other remedy that this Honourable Tribunal deems fit to grant.

3. The claimant filed a List of Documents dated 27/8/2014 which include;1. Minutes of Special meetings in 2/5/2012. 2.Certificate of Registration dated 30/8/2010. 3.Membership list.4. Inquiry Report into the affairs of Relico Sacco dated 28th April 2005. 5.Letter dated 7th January 2008. 6.Letter dated 9/5/2006 from the Ministry of Co-operative Development and Marketing.7. Newspaper extract from Daily Nation dated 23/4/2008. 8.Demand Letter addressed to the Respondent and the Commissioner of Co-operative Societies.9. Letter from the Kenya Railways group to the Commissioner of Co-operatives dated 20/5/2013. 10. Letter from the Permanent Secretary Ministry of Co-operatives to the Commissioner of Co-operatives dated 1/11/2006. 11. Letter from the Ministry of Co-operative Development and Marketing to the District Co-operative Officer dated 5/3/2009. 12. Letter from Co-operative Savings and Credit Society Limited dated 11/2/2009. 13. Letter from the Ministry of Transport to Kenya Railways Pensioners’ Association dated 20/5/2002. 14. Any other document to be produced with leave of the Honourable Tribunal.

4. The Respondent filed a Statement of Defence dated 27/4/2014 on even date. The Respondents aver they were unable to respond to the Statement of claim by the claimant. The stated claimant is a busy body who has filed a series of frivolous matters that is. CTC 355 of 2013. They denied the claims by claimant generally and more so are strangers to the fact that Kshs.4,000,000/= was released by Commissioner for Co-operatives and that only Kshs.1,900,000/= was released to 42 members and balance mismanaged to unclear projects. The Respondents denied the claimant had a legal claim against them for refund of shares, accrued dividends plus interest.

5. Despite efforts to have the claim resolved amicably and after back and forth between parties, hearing was slated for 4/9/2023. claimant Witness 1 – John Otieno Oloo gave evidence stating the claimants and other members contributed upto Kshs. 564,768,844. 85/= while members of Reli Sacco. He stated that they were not paid any dividend. They received their money in bits and not lump sum. His prayer is for their refunds with interest. He produced the documents as filed by claimant as well as the Respondent. They want interest and dividends from their different projects undertaken by the Sacco that is,i.Reli Towers.ii.Dandora Housing.iii.Kanyankwar Kisumu.iv.Finly Kisumu.The claimant avers they contributed towards the purchase and the building of the same.On cross examination, the claimant stated he had not been paid his dues that is, dividends. For his savings, they were refunded in 2008 after deductions on amounts given by employees as transport. He confirmed he claims dividends because the Respondent was running a business and as such ought to benefit.

6. He confirmed on cross examination, that Reli Towers project was not built but he avered it was a parking lot thus generates money.Dandora Project – The claimant stated it was for employees working for the society.Kisumu Kanyakwar Project – The claimant confirm it was sold but does not know who benefited.Relisa Housing – The claimant stated it benefitted those who purchased.He clarified the other projects were as per contributions other than Finley Housing.

7. The Respondent testified: Respondent Witness 1 Bob Charles as Chairman of Reli Sacco. The Respondent produced their List of Documents as evidence. He stated that the claimant John Oloso was refunded his money in 2008 and gave documentation confirming the same. He confirmed between 1996-2011, there were no dividends declared. He further stated the Respondent refunded members their contributions. He clarified Relisa was bought by members and it was not for the Sacco. Not everyone was a member of Relisa Sacco. He was in agreement with the claimant that Kisumu Kanyakwar was for members who invested in it. On Cross Examination he stated interests and dividends was payable when business is doing well. He stated, Reli Towers was not built, thus no income.

8. At the end of their case for purposes of clarification and to enable the Tribunal to retire and write their judgement, the parties were to file written submissions with Respondent filing their Written Submissions dated 4/10/2023 on 5/10/2023 and claimant filed Written Submissions dated 29/11/2023 on 30/11/2023. The Tribunal further directed the Respondent to file Audited Accounts for the year 2001-2014. The Respondent filed Audited Accounts as report for the years 2001 to the year 2014. The Tribunal further ordered for Commissioner of Cooperatives to file a status report of Respondents. The Commissioner did file their report.Having looked at all the reports as they were, we note the issue for determination as;

Issue One. Whether there were dividends and interest payable between the years 2001 – 2008? 9The Respondent filed the Audited Accounts of Reli Sacco and in the said Accounts, it is indicated for the years.Page 272 – not paid up.Year 2001 – Page 272 Respondent’s – not paid.Year 2004 – page 260 – loss declared.Page 254 – interest rebates.Year 2005 – page 236 – loss declared.Year 2006 –Year 2007 – page 183 – loss declared.Year 2008 – page 156 – loss declared.Year 2009. Year 2010.

Issue Two. Which of the projects belong to Members of Reli Sacco? 10While adducing evidence, it is not in contention that;1. Kisumu Kanyakwar project was for paid up members. All members agree with this position and even the Inquiry Report of 28/4/2005 page 12 stated it was subdivided into 277 plots.2. Dandora Plot Project. Both claimant and Respondent agree this was also for paid up members and it is used as Staff Housing.3. Reli Towers Project. It was for all members and a building was to be put up. However, as per claimant, it’s being used as a parking lot. The Respondent Witness 1 was not clear on the status of Reli Towers project.

11From the documents filed by the Respondent on the audited accounts we have observed, there is income generated from Relisa.

12As per the documents produced and evidence of parties we find the claimant has failed in their claim for dividends and interest payable.

13There is no evidence that indeed any dividends were declared during the years sought. claim has no merit. As such the claim dated 27th August, 2014 is dismissed with no orders as to costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023TRIBUNAL CLERK JONAHJohn Otieno Oloso presentReli Sacco- No appearanceHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023