[2021] KECPT 520 (KLR)
The tribunal found that the claimant had established her claim on a balance of probabilities, supported by documentary evidence including a deposit agreement and receipts totaling Kshs. 510,000. The respondent's allegations of collusion and fraud were unsubstantiated, as no evidence was produced to support these...
Source-derived case information.
- Citation
- [2021] KECPT 520 (KLR)
- Parties
- Claimant: Violet Shidogo Shitakwa; Respondent: Rupa Savings & Credit Co-operative Society
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 689 of 2019
- Procedural Posture
- Tribunal Claim / Judgment
- Outcome
- judgment for the claimant
- Legal Topics
- Refund of Shares, Member Deposits, Burden of Proof, Documentary Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Violet Shidogo Shitakwa
Claimant
Rupa Savings & Credit Co-operative Society
Respondent
Procedural Posture
Tribunal Claim / Judgment
Legal Issues
- 1 Whether the claimant is entitled to a refund of Kshs. 510,000 plus interest from the respondent.
- 2 Whether the respondent proved allegations of collusion or fraud to defeat the claimant's claim.
- 3 Whether the documentary evidence produced by the claimant outweighs the respondent's denials.
Ratio Decidendi
The tribunal found that the claimant had established her claim on a balance of probabilities, supported by documentary evidence including a deposit agreement and receipts totaling Kshs. 510,000. The respondent's allegations of collusion and fraud were unsubstantiated, as no evidence was produced to support these claims. The respondent's own documents did not comprehensively account for all deposits, and their failure to provide a statement of account for the claimant further weakened their position. The tribunal concluded that the claimant was entitled to a refund of Kshs. 510,000 plus costs and interest, as the respondent failed to disprove the claim or substantiate their allegations.
Court Disposition
judgment for the claimant
Orders
- The respondent shall pay the claimant Kshs. 510,000.
- The respondent shall pay costs of the suit to the claimant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE CO-OPERATIVE TRIBUNAL
AT ELDORET
TRIBUNAL CASE NO. 689 OF 2019
VIOLET SHIDOGO SHITAKWA...............…….............................................CLAIMANT
VERSUS
RUPA SAVINGS & CREDIT CO-OPERATIVE SOCIETY....................RESPONDENT
JUDGMENT
The Claimant’s case against the Respondent vide the Statement of Claim filed on 1. 11. 2019 is for refund of shares Kshs. 470,000/=plus interest total amount claimed being Kshs.510,000/= plus costs and interest in the suit.
The Respondent filed a Response on 9. 12. 2019 denying the Claimant’s claim.
The matter proceeded to hearing with the Claimant and Respondent calling 1 witness each. The Claimant filed written submissions on 12. 10. 2020 and the Respondent filed no written submissions despite various mentions on 13. 10. 2020 and 3. 11. 2020 for the same.
The Claimant stated that she was a member of the Respondent and was making deposits as per the bundle of receipts amounting to Kshs.510,000/=. The Respondent contended that the Claimant was not an employee but acknowledged Kshs.40,000/= deposit. That the deposit slips were not signed but stamped with a fake stamp. That there was loss of over Kshs. 39 Millionand there was an ongoing inquiry and they would refund after the inspection.
We have carefully considered the evidence on record, the pleadings and the documents produced in the matter. We note that there is a deposit agreement dated 13. 9.2019 for Kshs.470,000/= plus 8% per month interest. We have also noted the deposit slips produced. In defence the Respondent alleged collusion with previous committee members and fictitious documents but there was no proof of the same. The Respondent did not also avail the Statement of Account in regard to the Claimant but only purported that refunds were stopped owing to the inquiry. The Respondent further submitted in their evidence that they were ready to pay any refunds due and owing to the Claimant. The Respondent produced a list of depositors for September 2019 and the Claimant Number 288 Membership No. 1334 deposited Kshs.40,000/= and similar deposit agreements as that of the Claimant but specifically for Evans Ongunya whose name does not appear in the list of depositors. This shows that the said list of depositors could not be comprehensive. In essence, the documents of the Respondent have not negated the documents produced by the Claimant. Even though the Respondent avers collusion or fraud, no evidence has been called to support the allegations. We note that there is an agreement between the parties for Kshs.470,000/=, plus 8% interest and a 2018 Statementfor total savings of Kshs.510,000/=.
In totality we find that the Claimant has established her claim on a balance of probabilities and accordingly enter judgment in favour of the Claimant against the Respondent for Kshs.510,000/= plus costs and interest in the suit.
Judgment signed, dated and delivered virtually this 4th day of March, 2021.
Hon. B. Kimemia Chairperson Signed 4. 3.2021
Mr. P. Gichuki Member Signed 4. 3.2021
Mr. B. Akusala Member Signed 4. 3.2021