https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/232

Otiende v Chuna Co-operative Savings and Credit Society Limited (Tribunal Case 413 of 2020) [2026] KECOPT 232 (KLR) (14 May 2026) (Judgment) Neutral citation: [2026] KECOPT 232 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 413 of 2020 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 14, 2026 Between Nixon Otiende Claimant and Chuna Co-operative Savings and Credit Society Limited Respondent Judgment 1.The Statement of Claim dated 23rd October, 2020 was filed as a result of the Respondent continuing to deduct the Claimant’s salary for monthly shares, loan, interest and benevolent fund despite the notice of withdrawal. 2.According to the Claimant, he was a member of the Respondent Membership No. 7564 until 30th September, 2019 when he withdrew his membership. That as at the time of membership withdrawal, he had accumulated shares of Kshs. 1,465,000/= with a share capital of Kshs. 41,500/= against normal loan of Kshs. 1,365,688/= 3.That in response to the letter of withdrawal, the Respondent alleged that he had loan top-ups that he never paid with 10% top-ups commission totaling to Kshs. 1,071,408.05/= and that he would only be allowed to withdraw upon settling what he owed the Respondent. 4.That the Respondent never provided supportive documents and is acting in bad faith to subject him to unnecessary suffering. 5.The Respondents filed their Statement of Defence dated 8th August, 2024 stating among others that the normal loan of Kshs. 1,365,688/= was further surcharged with the normal top-up of 10% which the Claimant is yet to settle. It was also their position that the Claimant was aware of the Respondent’s loaning policy and that the 10% top up would be chargeable and as such, the Respondent is procedurally deducting the subject loan repayments together with the applied 10% top-up. Hearing 6.The Claimant testified that he was the Treasurer of the Respondent from 2013-2017 and took loans but not top-up loans. It was also his testimony that their board was suspended while in office by SASRA because of appointing an acting CEO and not because of the 10% top-up. It was also his testimony that a top-up loan is like a new loan with a loan form. 7.Joshua Tanui testified on behalf of the Respondent that he was employed in 2024 by the Respondent and is the acting CEO at the moment. It was also his testimony that the Respondent had a policy on top-ups and that the amounts were recalculated based on all top-ups a party took. On cross-examination, the witness was unable to produce any form showing the loan top-ups. Written Submissions 8.The Claimant filed his submissions dated 9th December, 2025 stating among others:i.That the Respondent relied on the evidence of Joshua Tanui who was not an employee of the Respondent at the material time but adopted the Witness Statement of Andrew Abuga who had left the employment of the Respondentii.That the Claimant has never been an employee of the Respondentiii.That the Respondent Witness failed to produce documents to justify the allegations they were makingiv.That the issue of top-up loans were concocted by some of the Respondent’s Officials against the Claimant for some ulterior motives best known to themv.That the amounts being claimed are not supported by loan formsvi.That the conduct of the Respondents offend the provisions of their by-laws and violates the Claimant’s rights as a membervii.That the deductions of the Claimant’s salary after the withdrawal of his membership and the disputed 10% top up loan interest was unlawful and illegalviii.That the total amount of Kshs. 1,071,400/= deducted for the alleged top-up loan ought to be refunded with interest. 9.The Respondents filed their submissions dated 9th January, 2026 stating among others:I.That at the time the loans were advanced, the Respondent’s credit policy expressly provided that where an existing loan was cleared during a loan top-up, the member was required to pay a 10% top-up fee on the amount clearedII.That the Claimant benefited from the said loan facilities but did not pay the mandatory 10% top up fees at the time of disbursementIII.That the AGM of 7th April, 2018 was clear and resolved that all outstanding 10% top up fees be paid and that Directors who served during the affected period be surchargedIV.That the Claimant applied to withdraw from the Claimant after the regulatory findings and the resolutions of the SGM without first settling the outstanding top up fees.V.That the present suit arises from the Claimant’s attempt to exit the Sacco without first settling outstanding financial obligations lawfully due and payableVI.That the Claimant received 6 loan top-ups without paying 10% top up fees between 2015 and 2017.VII.That the Claimant is not entitled to withdraw from the Sacco before fully settling all outstanding financial obligations 10.We have considered the claim, the defence filed in response, the evidence adduced at trial and the submissions filed, and the only question remaining for determination is as to whether either party have proved their claims. Has either party proved their claims? 11.It is important to note from the onset that cases are proved by evidence and the party who intends to prove the existence of any fact, has the burden of proving the existence of that fact. This is succinctly set out in Sections 107-109 of the Evidence Act, Cap 80 which state: 107.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 12.Which party has the burden of proof was addressed by the Court of Appeal in the locus classicus case of Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, where the court held that:As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 13.This in essence mean that the burden of proof is neither on the Plaintiff nor the Defendant but on the party that alleges specific matters. It is on the party who alleges. In Evans Nyakwana v Cleophas Bwana Ongaro [2015] eKLR it was held that:As a general proposition, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.” 14.In this particular case, the Respondent alleged that the Claimant had top-ups that he never paid with 10% top-ups commission totaling to Kshs. 1,071,408.05/=. In as much as the Respondent attached as part of evidence the loan policy showing the origins of the 10% top up policy and the minutes of the resolution of the SGM to recover the same, during the hearing, the Respondent witness was not specific on the dates the top ups were disbursed, neither did he present in court the loan forms for the top ups. This came in the backdrop of a letter dated 26th April, 2022 addressed to the Claimant by the Respondent, that showed that their claim for unpaid 10% top up commission was Kshs. 471,485.70/=. As a Tribunal, we don’t understand the circumstances under which the Respondent ended up deducting Kshs. 1,071,408.05/= from the Claimant’s salary, when what they demanded for top-up was Kshs. 471,485.70/= 15.It is also important to note that what is presented in submissions is not evidence. What is presented in submissions is for focusing the court’s attention on those points of the case that should be given the closest scrutiny in order to firmly establish a claim or disprove it. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR, the Court of Appeal in relation to submissions stated:Submissions cannot take the place of evidence. The 1st Respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.” 16.As such, the Respondent cannot be allowed to introduce new evidence at the submission stage that there were 6 top-ups, without that evidence having been availed and cross-examined during the hearing. Final Orders 17.The Statement of Claim dated 23rd October, 2020 party succeeds with the following orders:i.Only the sum of Kshs. 471,485.70/= is to be deducted from the Claimant to cater for the top-ups. Any other amount deducted in excess of Kshs. 471,485.70/= to be refunded to the Claimant with interest at Tribunal ratesii.Respondent to offset the Claimants loan with his shares savings as at the date of resignation - 30th September, 2019.iii.Parties to bear their own costs. JUDGEMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF MAY, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 14.05.2026HON. BEATRICE SAWE MEMBER SIGNED 14.05.2026HON. FRIDAH LOTUIYA MEMBER SIGNED 14.05.2026HON. MICHAEL CHESIKAW MEMBER SIGNED 14.05.2026HON. PAUL AOL MEMBER SIGNED 14.05.2026TRIBUNAL CLERK MUTAIAshiruma advocate for ClaimantKipkesei advocate for the RespondentHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 14.05.2026