[2021] KECPT 569 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.397 OF 2016

SOLOMON MUTHURI .............................................CLAIMANT

VERSUS

MENYA SERVICES SAVINGS AND

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

JUDGMENT

1. Claim before the Tribunal is dated 14. 7.2016 and filed on 26. 7.2017. The same seeks for :

a. Refund of a total sum of Kshs.797,595/=

b. Damages for loss of income and profit from the matatu business

c. Cost and interest

d. Any other relief this Tribunal may deem fit and just to grant.

2. The Respondent denied the claim vide their Statement of Defence dated 20. 12. 16 which was filed with consent of parties as the Respondent sought to set aside interlocutory judgment entered on 9. 11. 16.

3. Claimant’s claim/case

Claimant was a member of Respondent and was member number 023 and had 2 motor vehicles KAS 184G and KBB 060L.

Claimant claims from his Statement of claim had been barred from engaging in the transport business by Respondent causing him loss of income and daily profit from July 2013 to date of filing suit.

Its claim is for:

1. Kshs.650,000/= as savings

2. Kshs.96,000/= dividends

3. Kshs.41,000/= as share contribution for purchase of plot at makutano.

4. Kshs. 10,000/= purchase of Sacco Van.

5. Loss of income and profit from rates business.

4. Claimant case was heard on 12. 1.2020 where he adopted his witness statement dated 14. 7.2016 and produced his list of documents dated 14. 7.2016 and supplementary list of documents dated 5. 3.2020.

He claims he had a loan with the Respondents and he paid it in full. The Statement of Account dated 31. 11. 2012evidences the same.

He wrote his resignation letter on 19. 11. 2013 and was to receive his refund within 90 days.

During cross examination he stated he had not guaranteed loans of any members of the Respondent. All the members whom he had guaranteed had paid up their loans.

The claimant’s submissions dated 19. 2.2021 and filed on 23. 2.2021have also been taken into consideration.

The submissions reiterated the Claimant’s case and evidence.

5. Respondent’s claim/Case

Abraham Kareithi the Manager of Menya Sacco Limited gave evidence on behalf of Respondent. According to his evidence the Claimant has a loan balance and the members he guaranteed loans had to be discharged.

He stated the Claimant’s loan balance was; (i) Kshs.243,482/= before accruing interest.

(ii) Emergency loans Kshs.158,344/=

(iii) Normal loan Kshs. 73,647/=

After accrued interest total from November 2013 is Kshs.951,765. 75/=.

6. The Claimant’s Dividends were used to offset part of the loan as per the Respondent’s evidence.

He stated Claimant had guaranteed 5 people and there were 3 pending loans from those he had guaranteed.

On the plot entitlement-RW1 stated many members contributed and Respondent is still servicing the loan and shares can only be transferred but not refunded.

The Respondent filed their submissions dated 22. 2.2021 and filed on 2. 3.2021 which have been taken into consideration.

7. The issues to be determined herein are:

(i) Whether the Claimant resigned or was he expelled from the Sacco.

(ii) Whether the Claimant is entitled to his savings and share contributions?

(iii) Whether the Claimant owe the Respondent any money in form of loan?

(iv) Whether Claimant is entitled to loss and income from July 2013.

8. Issue one:

Did the Claimant resign or was he expelled from the Sacco?

From the evidence adduced by the parties, we find no evidence alluding to the fact that the Claimant was expelled from the Sacco however we note that the only evidence available is one for the claimant resigning as a member of the Respondent Sacco vide letter dated 19. 11. 2013.

9. Issue two:

Is the Claimant entitled to his savings and share contribution?

The Co-operative Societies Rules are very clear on refund of shares and or contributions. The same are refundable where there are no liabilities attaching on the member.

The Claimant claim the Respondent owe him a refund of Kshs.797,593/=.

The Respondents on the other hand claim the Claimant has unpaid loans and some of the persons he had guaranteed loans had not serviced their loans. The Claimant loans amount to Kshs.243,482/= as per RW1 evidence with interest and Kshs.649,210/= in emergency loan.

Further there is the claim for the Claimant having guaranteed other members loans and some of the members have since defaulted.

Having considered these assertions and submissions by both parties, the Claimant avers if indeed he had an emergency loan the maximum he would have been allowed to take was Kshs. 80,000/= which was confirmed by RW1.

We find the Claimant is entitled to his savings and share contributions less the amount he has in loans.

10. Issue three :

Does the Claimant owe the Respondent any money in form of a loan?

We find the Claimant owes the Respondent kshs.100,000/= in terms of loans.

As of the year 2012 and 2013 the Claimant was servicing a loan which makes us conclude he was repaying his loans.

11. Issue four:

Is the Claimant entitled to loss and income from July 2013?

The Tribunal finds the Claimant was not expelled from the Respondent Sacco as they would like us to believe. No evidence has been placed before the Tribunal to make us think otherwise.

With this in mind we find he was not expelled and thus he cannot claim for loss of income if any from the Respondent.

12. Conclusion

1. The Tribunal thus finds the Claimant is entitled to a refund of Kshs. 500,000/=.

2. Prayer No. 2 on loss of income and profit fails .

3. Claimant entitled to Costs and interest at court rates.

Judgment signed, dated and delivered virtually this 3rdday of June, 2021.

Hon. B. Kimemia Chairperson Signed 3. 6.2021

Hon. J. Mwatsama Deputy Chairperson Signed 3. 6.2021

Mr. P. Gichuki Member Signed 3. 6.2021

Tribunal Clerk Leweri

Kaaria for the Claimant

Mutuma for Respondent

Hon. J. Mwatsama Deputy Chairperson Signed 3. 6.2021