[2023] KECPT 853 (KLR)

Ouso v Stima Investment Cooperative Society Limited (Tribunal Case 285 of 2018) [2023] KECPT 853 (KLR) (Civ) (17 August 2023) (Judgment)

Neutral citation: [2023] KECPT 853 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 285 of 2018

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

August 17, 2023

Between

Naftalis Obando Ouso

Claimant

and

Stima Investment Cooperative Society Limited

Respondent

Judgment

1. The Claim is brought through a Statement of Claim dated 14th June, 2018. The Claimant filed a Verifying Affidavit by Naftali Obado dated 14/06/2018 and filed on the same date. The Claimant filed a list of documents to support the Statement of Claim dated 14/06/2018 and filed the same date. The Claimant prayed for a full refund of the sum invested in the Respondent’s shares together with the due dividends and investment returns totaling to Kshs. 418,035. 00/= plus cost of the suit and interest.

2. The Respondent filed a reply dated 07/08/2018 and filed on 16/08/2018 together with a Witness Statement by Viola Odhiambo filed on 06/11/2020. On 09/11/2020, parties entered into a consent that was recorded in court whereby the Respondent accepted to pay Kshs. 180,000/=, the Claim for Kshs 7. 035/= for dividends was withdrawn.A hearing date was given.

Claimant’s Case. 3. The Claimant called one witness, the Claimant himself, Naftali Obado, Claimant Witness 1, he adopted his witness statement dated 12/06/2018 as his evidence in chief. He further adopted his List of Documents as exhibits; Claimants exhibits.The Claimant stated that he made several investment contributions towards purchase of shares totaling to Kshs. 231,000/=. He further averred that he purchased property through the Respondent at Malindi costing Kshs. 540,000/=. He made a further deposit of Kshs. 310,000/= for a greenhouse which would yield a return of Kshs. 180,000/= every 6 months but withdrew and demanded a refund which were refunded to him fully.

4. During cross-examination, the Claimant admitted that he has already been fully paid the claim for dividends, deposit for green house project and Kshs. 180,000/= being 6 months returns for greenhouse project.

5. The Respondent advocate asked whether he was aware of what the Claimant knew the Respondent’s By-law on matters share refund. To which the Claimant confirmed he was not aware.The Respondents did not have a witness and the Tribunal ordered the filing of written Submissions. The Respondent filed their Written Submissions dated 04/05/2023 on 26/05/2023. The Claimant did not file.

Analysis and Determination. 6. After going through the pleadings and the Written Submissions, the issues for determination are two;1. Whether the Claimant is entitled to a refund of Kshs. 231,000/=2. Who bears the cost of the suit.On the first issue of whether the Claimant is entitled to a refund of Kshs. 231,000/= it is trite law that he who alleges must proof as was held in.

7. From the List of Documents produced by the Respondent, was the Respondent’s by-laws. From reading the By-laws clause 20(a) and (b) provide that under no circumstances shall members share be refundable. It is worth noting that indeed the Claimant is in their Statement of Claim averred that he purchased shares worth Kshs. 231,000/= .His withdrawal should therefore follow the laid down procedure as set out in clause 13, 20(a) and (b).On the second issue of who bears the cost of the suit.It has been held that costs shall follow the event and the party that succeeds should be awarded the same.

8. From the foregoing, the Tribunal therefore finds in favor of the Respondent against the Claimant.The Tribunal orders that the cost of the Claim shall be borne by the Claimant.

Orders. 9. We hereby order as follows.a.The Claim is found to be without merit, the same is dismissed.b.Each party to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 17. 8.2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 17. 8.2023HON. BEATRICE SAWE - MEMBER SIGNED 17. 8.2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 17. 8.2023HON. PHILIP GICHUKI - MEMBER SIGNED 17. 8.2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 17. 8.2023HON. PAUL AOL - MEMBER SIGNED 17. 8.2023TRIBUNAL CLERK JEMIMAHOmbati advocate for the ClaimantNganya & Kibet advocate for Respondent – No appearanceJudgment read out.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 17. 8.2023