[2022] KECPT 170 (KLR)

Pamela Aduol Wanjama & others v Taraji Sacco Society Limited & others (Tribunal Case 675 of 2018) [2022] KECPT 170 (KLR) (Civ) (17 February 2022) (Judgment)

Neutral citation: [2022] KECPT 170 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 675 of 2018

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Pamela Aduol Wanjama & others

Claimant

and

Taraji Sacco Society Limited & others

Respondent

Judgment

1. The claim for determination is dated 22. 11. 2018 filed ………..The claimants aver they were members of the 1st respondent formerly known as Siaya Teachers Savings and Credit society Limited having joined the Respondent Sacco on diverse dates and years.The claimant’s on separate letters addressed to the 1st respondent dated 14. 10. 2016 issued voluntary withdrawal of membership from the Sacco. They stated that the respondent By-law No. 19 and 20 provides procedure of withdrawal which they followed.The respondent have now failed to settle their dues.The claimant made their contributions till august 2017 when respondent stopped making deductions and the claimant claim is for.Name Amount1. Pamela Aduol Wanjala 305,550/=2. Mercella Odera Oloo 291,050/=3. Cellyne Otieno 136,500/=4. Joan Adhiambo Ng’ayo 282,000/=5. Ursulla Catherine Atieno 247,250/=6. Pamela Akinyi Ajuoga 303,600/=7. Mary Atieno Ogeya 211,000/=8. Margaret Millicent Were 288,100/=The claimants now seek for an order compelling the respondent to refund their savings amounting to Kshs. 2,065,050/=.The claimant claim is for :a.Special damages A refund of Kshs. 2,065, 050/=b.General damages for loss of usec.Interest on (a) and (b) aboved.Costs of this suit.e.Any other and/or further relief that the Honourable Tribunal may deem fit to grant.

2. The respondent filed a statement of defence dated ………by the 2nd respondent Stephen Oluoch.They stated they do not deny the claimants were their members and that the claimants were entitled to the following amounts:Name Amount Risk Fund1. Pamela Aduol Wanjala 245,450/= 19,200/=2. Mercella Odera Oloo 242,200/= 31,200/=3. Cellyne Otieno 117,700/= 16,400/=4. Joan Adhiambo Ng’ayo 251,000/= 19,200/=5. Ursulla Catherine Atieno 209,900/= 32,850/=6. Pamela Akinyi Ajuoga 269,850/=13,200/=7. Mary Atieno Ogeya 182,450/=20,400/=8. Margaret Millicent Were 248,270/=31,850/=The respondent stated the claimant payslips should not be relied on as it did not detail how the claim was accumulated and containing gross remittance from TSC. Further share capital of Kshs. 4,000/= is non-refundable, as well as Plaza share of Kshs. 5,000/= as per the respondent’s By -laws.There is further a risk fund which claimant did not consider that is also non-refundable (see table above)That the respondent was mismanaged and claimants are aware of the bad financial status of the respondent due to mismanagement.The respondent thus prayed for judgment to be entered for:a.Payment of claimants total deposits of Kshs. 1,766,820/= by instalments of Kshs. 32,000/= (that is Kshs.4,000/= per Claimant) per month until full paid.b.Any relief this honourable Tribunal deem fit to grant in this circumstance.

3. The claimant filed a reply to respondent statement of defence refuting paragraph 4,5,6, and 7 of the defence and putting the respondent to strict proof.Further, in response to paragraph 8,9,10 the claimant state they had no part in mismanagement of the 1st respondent and should not bear the burden.Parties were directed to file written submissions to dispose off the claim. The claimant filed their submissions dated 15. 10. 2021 filed on 26. 10. 2021 and respondent filed their written submissions dated ………………..on 27. 10. 2021.

4. Having looked and considered the statement of claim, statement of defence and documents there is no dispute that the claimant were members of respondent and they give notices.Issues for determination is:Issue oneHow much is due and payable to the claimant?Issue two:General damagesIssue three:Costs

Issue one: How much is due and payable to the Claimant?The respondent aver the amounts owing to Claimant is not as per their Statement of Claim.They attached an extract copy of By laws in this statement of defence which support their argument. Page 11 of the Taraji Sacco Society Limited under “shares” states“The nominal value of each share be Kshs. 20 and every member shall hold at least 200 shares while should not be refundable/withdrawable but no member shall hold more than 1/5 of the total shares of the Society….”We agree with the Respondent that indeed an amount of Kshs. 4000/= ought to be deducted as share capital from each of the Claimants.The plaza share there is no evidence of the same or that members were expected to contribute to the same.We also note that the respondent gave/prayed for the claimants dues to be paid by instalment which is taken as an admission.We thus find that the claimant are entitled to their dues calculated as follows:Name Amount1. Pamela Aduol Wanjala2. Mercella Odera Oloo3. Cellyne Otieno4. Joan Adhiambo Ng’ayo5. Ursulla Catherine Atieno6. Pamela Akinyi Ajuoga7. Atieno Ogeya8. Margaret Millicent Were

Issue two: General Damages 5. General damages are damages that arise directly and inevitably from a breach of contract.Question- Have the claimants been inconvenienced to such an extent to warrant payment of damages?General damages are meant to place a party back to the position as far as possible that they would have been.Was there a breach by the respondent- Yes there was.Did the breach cause suffering to the claimant and to what extent?This is the question which needs an answer and we find that despite there being a breach the extent of damage is not enough to warrant general damages. Looking at all the circumstances of the case a claim for general damages fails.

Issue three: 6. Costs follow the event. The claimant were left with no option but to bring their claim before the Tribunal when the respondent failed to respond and act on their demand.Thus we find the claimant are entitled to their costs.The upshot of the above is that we find in favour of the claimant against the respondent for Kshs 2,065,050 with costs and interest at Tribunal rates from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF FEBRUARY, 2022. Prepared by:Hon. J. Mwatsama Deputy Chairperson Signed 17. 2.2022Mr. P. Gichuki Member Signed 17. 2.2022Mr. B. Akusala Member Signed 17. 2.2022Tribunal Clerk R. LeweriOoro for the ClaimantsTaraji Sacco no appearance.Hon. J. Mwatsama Deputy Chairperson Signed 17. 2.2022