[2024] KECPT 1393 (KLR)

Olwal v Baya Savings and Credit Cooperative Society (Tribunal Case 660/E748 of 2022) [2024] KECPT 1393 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1393 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 660/E748 of 2022

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

August 29, 2024

Between

Romeo Olwal

Claimant

and

Baya Savings and Credit Cooperative Society

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 3rd August 2022. In the Statement of Claim, the Claimant claims that he was a member of the Respondent and that at one point he sought to get a loan facility from the Respondent, but the same was denied. He contends that when he was denied the facility he sought to withdraw from the Sacco, wrote a withdrawal notice to the Respondent, but he has not received his dues to date. The Claimants are aggrieved and pray fora.A declaration to issue allowing the claimant herein to withdraw as a member of Baya Savings & Credit Cooperative Society.b.Immediate reimbursement of Kenya Shillings Seven Hundred Thousand Nine hundred and four thousand seven hundred and five (Kshs. 794,705/= being the claimant’s deposits and contribution in the sacco.c.Reimbursement of Kenya shillings forty thousand (Kshs. 40,000/=) being the total value of 2000 shares value held by the Claimant in the sacco.d.Any dividends /interest due and owing from the claimant’s deposit contributions and share value. Interest on (b) & (c ) above at Commercial rates of 12% from 7th October 2021 until payment in full.e.Interest on (b) and (c ) above at Commercial rates of 12% from 7th October 2021 until payment in full.f.The cost of this claim.g.Such other as further relief as this Honurable Tribunal may deem fit and just to so grant.The Claimant filed a witness statement and a List of Documents in support of their claim.

2. In their Response, the Respondent agrees that the Claimant was its member, but contends that he did not do a formal letter of withdrawal from the Respondent.

3. During the hearing, both parties reiterated what was in their pleadings. The Respondent informed this court that the moment the Claimant submits a signed withdrawal form, the Respondent would pay his dues within 60 days.

4. Both parties filed their submissions. In their submissions, the Claimants highlighted clause 18 of the Respondent’s by-laws that concerns withdrawal by members. They submitted that the Claimant had issued a Formal Withdrawal Notice and they are entitled to the reliefs sought.

5. The Respondents submitted that the Claimant is bound by by-laws of the Respondent and that the by-laws require a strict signed notice of withdrawal.

Analysis 6. The question before this Tribunal is whether the Claimant is entitled to the relief sought. The Claimant’s claim is for a refund of his deposits and shares. It is not in dispute that the Claimant was a member of the Respondent. It is also not in dispute that the Claimant held deposits an amount that has not been disputed by the Respondent. It is also not disputed that the Claimant has expressed interest in withdrawing from the membership of the Respondent. The only dispute is that the method used to withdraw by the Claimant is not one that is prescribed by the by-laws of the Respondent. The Claimant contends that he wrote an email to the Respondent but the Respondent disputes this method because it claims it cannot be signed. The Claimant submitted a written notice, but the Respondent disputes that the Claimant backdated the dates in the letter to correspond to that of the day the email was sent.

7. This court asks itself, did the Claimant’s communication suffice as sufficient notice? We feel that the answer is yes. The email bearing the attachment notice had a notice that had been signed. The Claimant later sent a physical letter to the Respondent indicating his willingness to withdraw. The Claimant’s advocate also sent a demand to the Respondent to release the Respondent’s dues. The Respondent even witnessed the Claimant when testifying under oath that he no longer wishes to be a member of the Respondent. We find that this is sufficient notice to the Respondents, and the Respondent’s claims are just but delay tactics to deny the Claimant the enjoyment of his savings.

8. The Upshot is that we find merit in the Claimant’s Claim, and make the following orders:a.Judgment is entered in favour of claimant against Respondent for Kshs. 794,705/= plus cost and interest from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHKiendi advocate for the ClaimantMs. Maina advocate holding brief for Mr Njuru advocate fro the Respondent.Ms. Maina advocate - We pray for 30 days stay of execution.Kiendi advocate- No objectionTribunal orders:30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024