[2024] KECPT 917 (KLR)

Tuken v Metropolitan National Sacco Society Ltd (Tribunal Case 185/E226 of 2023) [2024] KECPT 917 (KLR) (27 June 2024) (Judgment)

Neutral citation: [2024] KECPT 917 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 185/E226 of 2023

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

June 27, 2024

Between

Monicah Ngamunu Tuken

Claimant

and

Metropolitan National Sacco Society Ltd

Respondent

Judgment

1. The matter before the Tribunal for determination is the Claimant’s claim for refund of Kshs. 580,528/= plus interest at 14% per annum from 17th October, 2022 until payment in full. The Claim is brought by way of Statement of Claim dated 1st December, 2022, filed on 28th March, 2023. Wherein the Claimant states that she was member 10052 of the Respondent. That the Respondent received monthly share contributions deducted from the Claimant’s salary.That on 3rd August, 2021, as per the Respondent’s rules and regulations, the Claimant issued a 60-day notice to withdraw from the Respondent’s membership with effect from 17th October, 2020. That further to the withdrawal, the Claimant wrote to the Respondent demanding refund of her shares and dividends amounting to Kshs. 580,528/= as at 17th October, 2022. That the Respondent has neglected, refused and/or failed to pay the said sum or any part thereof despite demand.

2. The Respondent responded to the statement of Claim vide the Statement of Defence dated 24th April 2023, filed on 18th August, 2023. Therein, the Respondent confirms that the Claimant was indeed a member of the Respondent and was making monthly member deposit installments but does not admit to the alleged pay slip deductions or to receiving a withdrawal letter. The Respondent further states that as per the Respondent’s 2022 Annual General Meeting resolutions of the General Assembly, members resolved and agreed to schedule refunds after two years due to the liquidity challenges of the Respondent. That there was a refund schedule on how the Claimant and other members were to be refunded. That no demand or intention to sue was received by it. That the Claimant is aware of the Respondent’s liquidity challenges and that his refund had to be held in abeyance in accordance with the 2022 Annual General Meeting resolutions. Consequently, the Respondent prays that the Claimant’s suit be dismissed with costs.The Tribunal directed the parties to file Written Submissions in support of their respective cases.

Claimant’s Case. 3. The Claimant filed a Witness Statement dated 1st December, 2022, on 28th March, 2023. The Witness Statement replicates the Statement of Claim.The Claimant also on 28th March, 2023 filed a List of Documents dated 1st December, 2022, containing a letter by the Claimant dated 17th October, 2022 requesting the remittal of the refund of her shares and a copy of the demand letter dated 25th October, 2022 from the Claimant’s Advocates and the certificate of posting thereto.

Respondent’s Case. 4. The Respondent opposed the Claimant’s claim, stating that through the Claimant was a member of the Respondent. The Respondent could not make the refund due to liquidity problems which led to the refunds being rescheduled.As at the time of writing this judgement, neither party’s Written Submissions were on record.

Determination. 5. We have considered the documents by parties and are satisfied that: -i.The Claimant was a member of the Respondent and she sought refund of her shares upon her retirement.ii.The Claimant’s advocate served upon the Respondent a demand which was duly stamped in receipt by the Respondent.iii.The Respondent has not controverted the claimed amount of Kshs. 580,528/=iv.The Respondent has not refunded any shares despite lapse of the alleged scheduled period.v.There is no evidence of communication or other document in regards to the Respondent’s alleged liquidity challenges or the alleged Annual General Meetings resolution said to have been made after retirement of the Claimant.vi.From the Claimant’s letter to the Respondent dated 17th October, 2020, it is clear that the Claimant sought refund of her shares amounting to Kshs. 580,528/=.

6. Consequently, we find that the Claimant has proved her claim on a balance of probability. We therefore enter judgement in favour of the Claimant against the Respondent in the sum of Kshs. 580,528/= plus costs of suit and interest at Tribunal rates from the date of judgement until payment in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 6.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 6.2024HON. BEATRICE SAWE MEMBER SIGNED 27. 6.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 6.2024HON. PHILIP GICHUKI MEMBER SIGNED 27. 6.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 6.2024HON. PAUL AOL MEMBER SIGNED 27. 6.2024Tribunal Clerk JonahMkamani advocate holding brief for Gitonga Muriuki advocate for the Respondent.Monicah Ngamunu Tuken- No appearanceMkamani advocate- We pray for 30 days stay of execution.Tribunal order- 30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 6.2024