[2023] KECPT 46 (KLR)

Randu v Turtle Bay Sacco Limited (Tribunal Case 824 of 2017) [2023] KECPT 46 (KLR) (Civ) (16 February 2023) (Judgment)

Neutral citation: [2023] KECPT 46 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 824 of 2017

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

February 16, 2023

Between

Master Sammy K. Randu

Claimant

and

Turtle Bay Sacco Limited

Respondent

Judgment

1. Matter for determination is Statement of Claim filed on December 28, 2017. The Claimant avers he was member of Respondent since 1994 and on September 13, 2017 he received a letter from Turtle Bay Hotel that his services were being terminated.He states the Respondent’s Account No01120090232 (paragraph 5) was frozen by Malindi Sub-County Co-operative Officer and he thus cannot access his shares of Kshs. 261,000. 00 as a result of mismanagement.The Claimant claims for;a.Ksh 261,000/- as stated in paragraph (5) aboveb.Costs of and incidental to this claimc.Interest at court rates on (ii) and (iii) above

2. Respondent filed a Statement of Defence. The Respondent denied owing the Claimant shares worth Ksh 261,000. 00 however confirm the Account No01120090232100 was frozen but not due to mismanagement.Further the Respondent in paragraph 7 of Statement of Defence state without prejudice to the foregoing the Respondent avers that in the event that the Claimant is owed Ksh 261,000. 00 as downs/shares and the same has not been released to the Claimant by the Respondent, which is vehemtly denied, then the Claimant has not officially notified the Respondent of his withdrawal from the sacco as per the laid down rules and regulations for the Respondent to initiate confirmation whether he had outstanding loans and or loans guaranteed.

3. We do note this is a matter that had come up to the judgment stage and file went missing until the same was reconstructed in the year, 2022. We have looked into the documents pleadings and Affidavits filed in a bid to appreciate the case and find as determination of the issues herein.We do note the matter had gone to the Garnishee stage. Wherein looking at the Replying Affidavit of John Kure Wainaina sworn on August 2, 2018 filed on August 6, 2018 the Garnishee therein Co-operative Bank admitted to having the funds but was awaiting the courts directions as per paragraph 6 and 7 of the said Affidavit.

4. The issue of determination in the main claim was on whether the Claimant is entitled to a refund of his shares.The tribunal finds this to be in the affirmative.The Respondent denies this however the Claimant from the bundle filed wrote a letter dated 1September 18, 2017 to the Chairman of Respondent requesting for his refund and further filed Statement of Account for 2017. We also look at a letter dated July 30, 2018 received by Co-operative Bank the Garnishee here on even date where the Respondent acknowledge default judgment of the court.Be that as it may we find that indeed from the documents we have the Claimant has proved his claim by filing a letter of withdrawal its Statement of Account which shows he had Ksh 261,000/- as at December, 2017. The Respondent have filed only their defence which had mere denials despite being granted an opportunity to file documents and matter set to for hearing.

UPSHOT 5. We find in favour of Claimant against Respondent for Ksh 261,000/- plus costs and interest.

JUDGMENT, READ AND DELIVERED VIRTUALLY THIS 16TH FEBRUARY, 2023. Hon. Mjeni Mwatsama D/Chairperson Signed 16. 2.2023Gitonga Kamiti Member Signed 16. 2.2023Maria Mbeneka Member Signed 16. 2.2023In the presenceSammy Randu - presentCheruiyet Advocate for the RespondentCheruiyet Advocate – We pray for 30 days staySamy Randu – I oppose the application. This case has been running over 5 years.Tribunal21 days Stay of Execution granted.SignedHon. Mjeni MwatsamaDeputy Chairperson16/2/23