https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/276

Sitati v Metropolitan National SACCO Limited (Tribunal Case E039 of 2023) [2026] KECOPT 276 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KECOPT 276 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E039 of 2023 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 25, 2026 Between Fred Makhaso Sitati Claimant and Metropolitan National SACCO Limited Respondent Judgment Introduction 1.The Claimant instituted this claim dated 15th June 2023 against the Respondent seeking refund of his shares and payment of accrued dividends following his withdrawal from the Respondent Sacco. 2.In his Statement of Claim, the Claimant sought the following reliefs:a.An order directing the Respondent to pay the Claimant Kshs. 191,000.00 being refund of his shares;b.A further sum of Kshs. 183,360.00 being accrued dividends arising from the said shares for a period of eight (8) years;c.Interest on prayers (a) and (b) above;d.Costs of the claim; ande.Any other relief this Tribunal may deem fit and just to grant. The Claimant's Case 3.The Claimant averred that he joined the Respondent Sacco in August 2015 and became a contributor towards share capital and savings. 4.The Claimant further averred that by a letter dated 9th February 2023, he notified the Respondent of his intention to withdraw his membership and demanded payment of his shares. 5.He contended that at the time of his withdrawal, he had accumulated shares amounting to Kshs. 191,000.00. He further claimed Kshs. 183,360.00 being accrued dividends allegedly calculated at the rate of 12% per annum for a period of eight years. 6.In support of his claim, the Claimant produced copies ofa.his pay slip andb.withdrawal letter, which also constituted his demand for payment of the shares. 7.The record shows that mention notices and hearing notice were issued in the matter. Further, the Claimant's written submissions were served upon the Respondent as evidenced by the affidavit of service on record. Despite these opportunities to participate in the proceedings and respond to the Claimant's case, the Respondent neither entered appearance nor filed any response. The Tribunal has therefore determined the claim on the basis of the pleadings, documentary evidence and written submissions on record. Issues for Determination 8.The issues falling for determination are:i.Whether the Claimant has proved his entitlement to refund of shares amounting to Kshs. 191,000.00;ii.Whether the Claimant has proved his entitlement to accrued dividends amounting to Kshs. 183,360.00;iii.What orders should issue as to interest and costs. Analysis and Determination 9.The Tribunal has considered the pleadings, documents and material placed before it. The law is settled that the burden of proof lies upon the party who would fail if no evidence at all were tendered on either side. In Palace Investment Ltd v Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal stated:“The burden of proof is on the party who would fail if no evidence at all were given on either side.” 10.Further, in Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court held:“The burden was always on the plaintiff to prove his case on a balance of probabilities even if the case was heard by way of formal proof.” 11.The Tribunal notes that although the Respondent did not enter appearance or file a response, the Claimant was still under a legal duty to prove his case. The absence of a defense does not automatically entitle a claimant to judgment. 12.The Claimant produced documentary evidence includinga.a pay slip andb.withdrawal letter demonstrating that he was a member of the Respondent Sacco and that he had accumulated shares amounting to Kshs. 191,000.00. 13.The said evidence was not challenged by the Respondent. 14.In the circumstances, the Tribunal is satisfied that the Claimant has proved his entitlement to refund of shares in the sum of Kshs. 191,000.00. 15.With respect to the claim for Kshs. 183,360.00 being accrued dividends, the Tribunal notes that dividends in a co-operative society are not automatic or fixed entitlements. They are ordinarily declared from surplus generated by the society after consideration of audited accounts and approval by the Annual General Meeting in accordance with the applicable by-laws and co-operative governance principles. 16.Accordingly, entitlement to dividends must be supported by evidence such as by-laws, AGM resolutions, audited financial statements, dividend declarations or other records demonstrating both entitlement and computation. 17.In the present case, although the Claimant pleaded entitlement to dividends calculated at the rate of 12% per annum for eight years, no documentary evidence was produced to demonstrate that such dividends were declared or payable during the period claimed. No by-laws, audited accounts, AGM resolutions or dividend declarations were placed before the Tribunal to support the claim. 18.The Tribunal therefore finds that the claim for accrued dividends was not strictly proved and consequently fails. 19.In the result, judgment is hereby entered in favor of the Claimant against the Respondent as follows:a.The Respondent shall pay the Claimant Kshs. 191,000.00 being refund of shares;b.The amount awarded in (a) above shall attract interest at court rate from date of filing suit;c.The claim for Kshs. 183,360.00 being accrued dividends hereby fails.d.The Claimant shall have the costs of the claim. JUDGMENT DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 25/6/2026HON. BEATRICE SAWE MEMBER SIGNED 25/6/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 25/6/2026HON. MICHAEL CHESIKAW MEMBER SIGNED 25/6/2026HON. P. AOL MEMBER SIGNED 25/6/2026Court Assistant – KokiNo appearance by partiesJudgement delivered in their absenceHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 25/6/2026