[2025] KECPT 185 (KLR)

Wandabwa v Metropolitan National Sacco Limited (Tribunal Case 313/E449 of 2023) [2025] KECPT 185 (KLR) (Civ) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 185 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 313/E449 of 2023

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

February 27, 2025

Between

Patrick Wandabwa

Claimant

and

Metropolitan National Sacco Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 8th June 2023 in which the Claimant claims that he was a member of the Respondent. The Claimant avers that he withdrew from membership in the year 16th February 2021 and is yet to receive his savings amounting to Kshs. 137,000/-. The claimant therefore prays for :a.A judgment against the Respondent for refund of Claimant deposits of Kshs. 137,000/= plus interest at court rate.b.Costs of the suitc.Interest in a & b above from the date of filing this suit.d.Any other relief that this Honourable Tribunal may deem just and fit to grant.The Claim is accompanied by documents in support of the claim.

2. The Respondent filed a Defence dated 5th March 2024 in which they contend that the Claimant has not sufficiently established that the Respondent is in possession of her shares and or deposits. They further aver that the Respondent has been through so much financial turmoil, and is overwhelmed by various applicants seeking to withdraw from the society.

3. The matter was canvassed by way of submissions and hence there was no hearing.

4. The Respondents filed their submissions.

5. In their submissions, the Respondents submitted that the Claimant has not established that the Respondent is in possession of their shares. They also submit that there was a resolution that was passed suspending all refunds, and that resolution was sent to the Claimant and that the resolution bound all the members of the Sacco since it arose out of an annual meeting. They also submitted that the Claimant did not approach with clean hands since they did not inform this Tribunal of the above resolution.

6. The Respondents further submit that an inquiry report found former directors guilty of embezzling the Respondent’s funds, and that the Respondent has lost a lot of money and crucial documents that it cannot now determine who took loans and who guarantees other members.

7. The Respondents pray that should this Honourable court find that money is owed to the Claimant, this Honourable court allow them to pay in instalments of between Kshs. 2,000/- to 5,000/-.

Analysis 8. This Tribunal has considered the submissions and the documents filed by the parties. This Tribunal notes that the Respondent, in its Statement of Defence, disputes paragraph 3 of the Statement of Claim. In that paragraph, the Claimant claims that he was a member of the Respondent, that he withdrew his membership and that requested to be refunded his shares. However, in the same statement and even in its submissions, there is an implication that the Claimant was indeed a member of the Respondent. For instance, the Respondent submits that the Claimant could have a loan or could have guaranteed other members loans. This can only happen when one is a member. We are, therefore, inclined to belief that the Claimant was a member of the Respondent.

9. This Tribunal sympathizes with the Respondent’s financial situation. However, on the other hand, in matters of refunds, is a member’s right to his deposits. The Co-operative Societies Act is clear on the concept of voluntary membership to a Co-operative Tribunal. As long as the Co-operative society is in operation, and has not gone into liquidation, it is expected to honor its obligation to its members. The good thing is that refund claims are liquidated sums, and the Respondent can go after, when it has regularized its books and brought order into operations.

10. The question, that this Tribunal now asks itself is whether the Claimant has sufficiently proved his claim on a balance of probabilities and if he is entitled to a refund.

11. The Claimant has produced copies of two pay slips. One for December 2013, and another one for December 2020. In the 2013 pay slip it is indicated a Metropolitan registration of Kshs. 1000/- and shares of Kshs. 1200/-, while the pay slip of 2020 only shows shares of Kshs. 1000. Since the Respondents have not disputed this, we presume them to be genuine, and thus shows that the Claimant was a member and was being deducted for the shares of the Respondent. The other document produced by the Claimant is a withdrawal letter dated 16th February 2021. In that letter, there is written in small print the member number of the Claimant, his account number, deposits of Kshs. 123,961/= and shares of Kshs. 14,000/=. The Claimant is claiming for Kshs. 137,000/= which seems to be an approximate total of the deposits and the shares. The Respondents do not dispute the withdrawal letter or the amount claimed by the Claimant. Without evidence to the contrary, this court is inclined to believe the Claimants Claim, save that the shares are not refundable deposits.

12. Flowing from above, we find merit in the Claimants Claim and order as follows-a.Immediate refund of Kshs. 123,961 to the Claimantb.The Claimant is awarded costs of this suit together with interest at Tribunal rates from date of filing suit at Tribunal rates until payment in full.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. Hon. B. Kimemia Chairperson Signed 27. 2.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 2.2025Hon. Beatrice Sawe Member Signed 27. 2.2025Hon. Fridah Lotuiya Member Signed 27. 2.2025Hon. Philip Gichuki Member Signed 27. 2.2025Hon. Michael Chesikaw Member Signed 27. 2.2025Hon. Paul Aol Member Signed 27. 2.2025Tribunal Clerk MutaiNo appearance by the parties.Hon. B. Kimemia Chairperson Signed 27. 2.2025