[2022] KECPT 904 (KLR)

Owuor v Regency Sacco Society Ltd (Tribunal Case 743 of 2019) [2022] KECPT 904 (KLR) (Civ) (16 December 2022) (Judgment)

Neutral citation: [2022] KECPT 904 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 743 of 2019

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

December 16, 2022

Between

Susan Atieno Owuor

Claimant

and

Regency Sacco Society Ltd

Respondent

Judgment

1. The matter for determination is an amended statement of claim dated 28/1/21 filed on 29/1/21. The Claimant claim she was member of Respondent that is Regency Sacco Society Ltd vide No C 38 and sometime in March, 2017 she wrote expressing to withdraw membership and sought for refund of her shares of Kshs 91,700 . 00.

2. The Respondent have ignored and neglected to refund and thus claimant prays for;a.The said sum of Kshs 91,700. 00 being shares contributions and excess loan deductions;b.Costs of the suit and interest until payment in full.

3. The claimant filed here list of document dated 9/12/19 which included;a.Claimant’s Statementb.Correspondence to the SaccoClaimant also filed further List of Document dated 29/1/20.

4. The Respondent filed Statement of Defence dated 19/12/19 and denied the amounts by the Claimant. The Respondent claims the claim for Kshs 70,000. 00 is exaggerated by Claimant. The Claimant states the Respondent is subject to withhold 39. 55% pursuant to resolutions passed in 2018.

5. Respondent further stated they were willing to settle and pay Kshs 10,000. 00 instalment to Claimant.

6. The Respondent filed their list of documents dated 30/10/20 to which had;a.Copy of minutes of the annual general meeting held on May 19, 2018b.Copy of the Claimant’s statementc.Copy of claimant’s membership application formd.Copy of bank deposit slip dated October 24, 2020 drawn in favour of claimant.And further list of Document dated 12/3/21 which had;a.Duly signed copy of minutes of the Annual General meeting held on May 19, 2018b.A copy of the Claimant’s statementc.A copy of the Claimant’s membership application formd.A copy of bank deposit slip dated October 24, 2020 drawn in favour of the Claimant.

7. The matter came fore hearing on 14/9/22 and CW1- Susan Atieno testified and relied on her Amended Statement of Claim and documents as filed.

8. On cross-examination she stated she ceased being a member in October, 2016. She said she did not know of any Annual General Meeting where a percentage of their shares would be withheld. She however confirmed only Ksh. 38,251. 00 had been paid so far .

9. The Respondent case proceeded on 15/9/22.

10. RW 1 – Joseph Kibged adopted his witness statement dated 9/12/19 as his evidence in chief and produce his documents as per list dated 30/10/20 and dated 12/3/21.

11On cross –examination he confirmed that the resolution to withhold 39. 5% of shares was passed in 2019 and it applies to everyone even those who withdrew earlier.

12. Parties were to file written submissions with Claimant filing written submissions dated 23/9/22 on even date and Respondent filing written submissions dated 11/10/22 filed on 13/10/22.

13. Having considered the pleadings, evidence of parties and written submissions with issues for determination are as follows;Issue one;Does the respondent owe the Claimant a refund?Issue two;Does the resolution to withhold 39. 5% of share contribute apply to claimant?

Issue One; Whether the Respondent owes the Claimant a refund? 14. It is not in doubt that Claimant was a member of Respondent and had shares of Kshs 123,200. 00

15. The Respondent as per evidence and written submissions of Claimant refunded Ksh.50,000. 00 initially when she withdrew and thus balance of Ksh. 70,000. 00 was still owing.

16. The Respondent however claim applied withholding 39. 55% out of which they are entitled to withhold Ksh. 26,372. 00 and balance is thus Kshs 43,628. 00.

17. The Respondent does owe the Claimant on refund the issue of amount is what is in dispute.

18. The amount knowing is Ksh 73,000. 00. The Respondent did not dispute the overpayment or excess amount paid by Claimant and thus it is not disputed.

Issue Two; Does the resolution to withhold 39. 55% of share amount apply to the Claimant? 19. The Resolution to withhold shares was passed in the Annual General Meeting held in 2019. We shall not go into the legality and veracity of withholding 39. 5% shares amount of members.

20. The mere fact that the Respondent passed the resolution after the Claimant had withdrawn her membership means the said resolution cannot apply to her.

21. The claimant is thus entitled to her for refund from the respondent.

Upshot 22. We thus find in favour of claimant against the respondent for Kshs 91,700. 00 plus costs and interest.

JUDGMENT, READ AND DELIVERED VIRTUALLY ON 16TH DECEMBER, 2022. HON MJENI MWATSAMA - D/CHAIRPERSONSigned December 16, 2022GITONGA KAMITI - MEMBERSigned December 16, 2022MARIA MBENEKA - MEMBERSigned December 16, 2022