[2023] KECPT 768 (KLR)

Thinguri v Metropolitan National Sacco Society Ltd (Tribunal Case 46/ E057 of 2022) [2023] KECPT 768 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 768 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 46/ E057 of 2022

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

August 31, 2023

Between

Jane Nungari Thinguri

Claimant

and

Metropolitan National Sacco Society Ltd

Respondent

Judgment

1. The matter for determination was brought vide a Statement of Claim dated 9th February 2022. The Claimant claims that he was a member of the Respondent. The Claimant further claims that she contributed her deposits making a total contribution of Kshs. 278,247. 00. /= She avers that on 12th July 2021 she served upon the Respondent a termination notice who received it but refused to its obligation to refund the Claimant’s deposits.

2. The Statement of Claim was accompanied by a Verifying Affidavit and a Witness Statement filed on 9th February 2022 both sworn by Jane Nungari Thinguri. She also filed a List of Documents dated 9th February 2022. This list included;a.A withdrawal letter dated 12th July 2021. b.A copy of a pay slip dated October 2021.

3. The Claimant prays for judgement against the Respondent for: -a.A judgement against the Respondent for refund of Claimant deposits of Kshs. 278,247 plus interest at Court’s rate from 12th July 2021 until payment in full.b.Costs of this suit.c.Interest in a & b above from the date of filing this suit.d.Any other relief that this Honorable Tribunal may deem just and fit to grant.

4. The Respondent filed a Statement of Defense dated 21st March 2022. The Respondent denies the claim by the Claimant. The Respondent denies receiving the Claimant’s notice of withdrawal and as per the Sacco’s by laws, if any notice of withdrawal of membership was ever received, member was required to wait 60 calendar days after making a refund request in writing. However, the Respondent avers that the Claimant’s refund is scheduled on 23rd February 2024 as per the Annual General Meeting Resolutions of 2019, which according to the Respondent are binding to the Claimant.

5. The Respondent filed a List of Witnesses dated 21st March 2022. The Respondent also filed a List of Documents dated 21st March 2022. The list included;a.Claimant’s member statementb.SACCO by laws.c.2019 Annual General Meeting Resolutions.

6. The matter being one of refund, parties were directed to file their written submissions to dispense off the merit suit. The Claimant filed their written submissions dated 6th December 2022. The Respondent failed to file their written submissions

7. Having looked into the pleadings and the written submissions filed by the parties we find that:

Issues one 8. Whether the Claimant issued a proper Notice of withdrawal from the SACCO.

9. From the evidence provided, it is clear that the Claimant has provided a withdrawal letter dated 12th July 2022 for a refund. The Respondent claims that the Withdrawal Notice does not bear the Respondent’s Stamp to show that the same was received, as per the provisions of the Sacco Society by laws on withdrawal of membership. The Respondent has produced the SACCO by laws however, there is nothing there to show that there is a standard format for notice of withdrawal from the SACCO, and as such, the said letter by the Claimant constitutes a proper Notice of Withdrawal and request for refund.

10. As a matter of fact, the response by the Respondent to the Claimant’s Withdrawal Notice was that all that the Claimant was required to do was to wait for 60 calendar days after making a refund request in writing. The Claimant, evidently, was not required to do any other thing once this withdrawal from the SACCO was done.

11. The Respondent has cited unspecified provisions of the SACCO’s bylaws, and managed to not produce them before this Tribunal. It is the Respondent’s allegation that the Claimant did not follow the process of withdrawal, and it was subsequently the Respondent’s burden to prove this assertion, but the Respondent failed to do so. This was elaborated in the case of Joseph Wamburu Gathogo v Kenya Qatar Diaspora Sacco society.

Issue two: Whether the Claimant is entitled to a refund of Kshs. 278,247. 00. 12. The Respondent has not contested that the Claimant was their member and held Savings and contributions amounting to Kshs. 278,247/= but they claim that the same cannot be refunded because of the 2019 Annual General Meeting Resolutions requiring the refund to be scheduled. The Claimant’s refund was consequently rescheduled to 23rd February 2024. This clearly shows there is an admission from the Respondent and thus a right for the Claimant to be refunded.

13. Order 2, rule 11 (3) of the Civil Procedure Rules, 2010 provides that, every allegation of fact made in a Plaint or Counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by him in his Defence or Defence to Counterclaim; and a general denial of such allegations, or a general statement of non-admission of them, shall not be a sufficient traverse of them. Therefore, the Respondent has not denied to the sum of Kshs. 278,247. 00/=.

14. Order 13 Rule 2 of the Civil Procedure Rule, 2010 provides that any part where admission of facts has been made, apply to the court for such judgement or order as upon such admissions as he may be entitled. Similarly, in Choitram V Nazari the Court of Appeal stated that the admission should be clear and unequivocal. The admission must leave no room for doubt. In this case, the Respondent admits that the Claimant made member deposit installments and was to be refunded on 23rd February 2024. No sufficient reason has been given why refund should not be granted.

15. a.Who bears the costs of the suit?Costs follow the event.

Upshot 16. We enter judgment in favour of the Claimant against the Respondent for Kshs. 278,247. 00/= plus cost and interest.

Judgment signed, dated and delivered virtually at Nairobi this 31st day of August, 2023. HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER