[2024] KECPT 933 (KLR)

Waeni v Yes Sacco Society Limited (Tribunal Case 246 of 2019) [2024] KECPT 933 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 933 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 246 of 2019

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

May 30, 2024

Between

Naomi Waeni

Claimant

and

Yes Sacco Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 8th May 2019. In the Statement of Claim, the claimant avers that she has been a member of the Respondent since 10th August 2012. The Claimant claims that she sought to withdraw from the Respondent on 27th April 2018, at which point she had savings of Ksh. 892,000/-. She further avers that the Respondent informed her that they would remit her savings two months from the date of withdrawal. The Claimant now claims that she is yet to receive the remittance. The Claimant, therefore, prays for:a)Special Damages of Kshs. 892,000/=b)Costs of this suit.c)Interest on (a) above at tribunal rates from date of filing till payment in full.d)Any other reliefs that the tribunal may deem fit.The Claimant filed a witness statement and a List of Documents in support of her claim.

2. The Respondent filed a Statement of Defence dated 25th May 2019. In their Defence, the Respondents admit that the Claimant was its member and that indeed she sought to withdraw from the membership of the Respondent. However, the Respondent avers that it was not possible for the Claimant to be released from the membership of the Respondent since she is a guarantor and the loanee has not extinguished her debt to the Claimant.

3. During the hearing when the Claimant was asked whether she had guaranteed anyone loans, she responded that those she had guaranteed informed her that they had cleared their loans with the Respondent. She also avered that she has not been supplied with any statement by the Respondent. On re-examination, she said that she could not access her statement since her account was disabled when she sought to withdraw her membership.

4. One Alfred Polo testified for the Respondent. He confirmed that the email address correspondence filed by the Claimant was from the Respondent. On Re-examination, the Respondent’s witness stated that it is not possible to refund savings when one is a guarantor, and that the Claimant was still a guarantor.

5. The court ordered the parties to file their submissions, and the Respondents to file the Claimant’s savings statement with their submissions dated 19. 2.2024 on 6. 3.2024. The Claimants filed their submissions. The Respondent did not file submissions as at the date of this judgment.

Analysis 6. This Tribunal has taken note of the pleadings filed by the parties. It is not in dispute that the Claimant was a member of the Respondent. It is not in dispute that the Claimant had savings with the Respondent. It is also not in dispute that the Claimant sought to withdraw from the Respondent and that the Respondent is yet to repay her savings. The only issue in dispute is:1. Whether the Respondent is still a guarantor.2. Whether she is barred from withdrawing her savings while still a guarantor.3. During the hearing, the Claimant adopted her Witness Statement and stated that the people she had guaranteed had already cleared their loans. The Claimant also produced a series of emails in which the Respondent had committed to refunding her savings within 60 days of withdrawal. The Respondent confirmed that the series of emails was from them. The Respondent did not produce any evidence to show that the Claimant was still a guarantor. They neither filed the Claimant’s statement even after being ordered by this court to do so. We are inclined to believe in the Claimant’s assertions, that she is no longer a guarantor and that she is entitled to her full refund. The Respondent is playing delay tactics to avoid repaying the Claimants deposits.4. The upshot of the above is that we find merit in the Claimant’s claim. We order as follows:a.judgment is entered in favour of Claimant against Respondent for Kshs. 892,000/=.c.Costs of suit and interest from date of filing suit at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024HON. BEATRICE SAWE MEMBER SIGNED 30. 5.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 5.2024HON. PHILIP GICHUKI MEMBER SIGNED 30. 5.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 5.2024HON. PAUL AOL MEMBER SIGNED 30. 5.2024Tribunal Clerk JonahNyambura advocate for the ClaimantMbuthia advocate for the RespondentMbuthia advocate – We filed an Application to cease acting dated 23. 5.2024. We pray for directions.Nyambura advocate - I have no objectionTribunal orders:1. Application dated 23. 5.2024 to be served on all parties.2. Mention to confirm compliance on 7. 8.2024. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 5.2024