[2020] KECPT 93 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT KAKAMEGA

TRIBUNAL CASE NO. 674 OF 2017

SARAH BUSOLO.....................................CLAIMANT

VERSUS

BUTALI SAVINGS AND CREDIT CO-OPERATIVE

SOCIETY LIMITED ............................RESPONDENT

JUDGMENT

The matter for determination is the Claim dated 7. 12. 2017 filed on the same date seeking for a refund of deposits amounting Kshs.152,000/=. The Respondent filed a defence and Counterclaim dated 20. 1.2018 and filed on 24. 1.2018. The Respondent claimed Kshs.251,633/= being Claimant’s liabilities and the debts owed to it. The Claimant filed her Reply to defence and Defence to Counterclaim dated 28. 2.2018 and filed on 1. 3.2018. The matter came up for hearing. The Claimant Jackline Sarah Busolo (CW-1) testified. She stated that she was a member of the Respondent since 2012. That she was the treasurer and was removed in 2015 when she handed over to Paul Wawire.That her suspension letter was issued on 10. 5.2017 and thereafter she voluntarily decided to terminate her membership vide a letter written through her advocate dated 29. 6.2017. That her deposits then amounted to Kshs.152,000/- and the payslips showed deductions of Kshs.2000/=per month. She stated that she was accused of misappropriating funds as per the minutes of the General Meeting and denied liability to repay the money.

In cross examination, she confirmed that all officials had the duty to account. That at the hand over, the committee asked her to explain the allegations of the Annual General Meeting and thereafter, she was removed on the allegation of unverified cash. She confirmed that she did not go to show cause on the suspension.

RW-1, Hesbond Nyikali Malusa- Chairman - Butali Sacco adopted his witness statement and stated that he was working with the Claimant who was the treasurer. That the claimant had unverified cash which she could not explain and with two (2) others, were removed from office by the General Membership Meeting of 28. 6.2016. That she was among the officials liable to pay for certain funds of which he paid. That the treasurer being the chief accounting officer of the Sacco, vide the letter dated 10. 5.2017, was to either explain or be suspended from the committee and that is when she sent her intention to withdraw from the Sacco. That each official was to pay a certain amount to the Sacco and they paid with the exception of the claimant. On her part, the claimant was required to pay Kshs.258,615/=.

Parties filed their written submissions. The claimant filed hers on 4. 12. 2019 while the respondent did so on 29. 11. 2019.

The Claimant submitted that she was entitled to her deposits of Kshs.152,000/=. She denied her liability as contained in the counterclaim and alleged the same was unverified cash which did not mean lost cash. That the counterclaim is not based on any audit report and that the dispute fall under section 73 of the Co-operative Societies Act (Cap 490) Laws of Kenya.

The Respondent’s submissions is that the claimants was duly informed that she could not be refunded her shares until and unless she ceases to be a member of the society. That it was on this basis that she filed this claim and the Respondent filed a counterclaim for Kshs.258,615/=

That there was an inspection report by the District Co-operative Officer which apportioned liability to the officials including the Claimant and the said members were accordingly surcharged. That the claimant was served with a show cause letter. That she did not show cause but instead claimed immediate payment of her shares.

That she is therefore liable to pay the Respondent the amounts as claimed to the counterclaim.

We have carefully considered the evidence on record and the exhibits produced together with the written submissions of the parties. It is apparent that the Claimant vide her letter dated 29. 6.2017 clearly communicated her desire to withdraw from the Sacco. Our appreciation of the wording of the letter is that the same was a notice of withdrawal from the Sacco. She therefore ceased being a member of the Sacco after the expiry of sixty days from the date of the said letter.

In the absence of any objection to her claim of refund of Kshs.152,000/= by the Respondent, we find that she is entitled to refund of the said amount.

As regards the Counterclaim, we have looked at the documents presented by the Respondent specifically Defence Exhibit. No. 2 being the handing over minutes for the meeting held on 28. 6.2016 together with the summary thereof Defence Exhibit-3. We have also looked at the petty cash expenses Defence Exhibit. 16, the inspection report Defence Exhibit 1, the audit report Defence Exhibit. 10 and the receipts thereof, we are satisfied that the process which led to the officials of the Respondent being surcharged was fair and that all the other official paid up their surcharged amounts to the exception of the Claimant. The Claimant was required to show cause but she never appeared. We therefore find her liable to the amounts counterclaim that is, Kshs.258,615/=.

We order for this amount to be recovered from her deposits and that any other outstanding amount to be recovered from her personally.

We therefore enter judgment in favour of the claimant for Kshs.152,000/= and the Respondent for Kshs.258,615/=.

The Claimant will therefore pay the Respondent the sum of Kshs.106,615/= plus interests and costs.

Read and delivered in an open court this 26th day of February 2020

In the presence of ;-

Claimant : Sandra holding brief for Kiveu

Respondent : Kirunja holding brief for Akwala for Respondent

Court Assistant : Leweri Raphael

Hon. B. Kimemia

Chairman Signed

Hon. Terer

Deputy Chairman Signed

P. Swanya

Member Signed

Hon. B. Kimemia

Chairman Signed 26. 2.2020