[2025] KECPT 177 (KLR)

Wandera v Metropolitan National Sacco Limited (Tribunal Case 4/E008 of 2024) [2025] KECPT 177 (KLR) (27 February 2025) (Judgment)

Neutral citation: [2025] KECPT 177 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 4/E008 of 2024

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

February 27, 2025

Between

Joseph Wandera

Claimant

and

Metropolitan National Sacco Limited

Respondent

Judgment

1. The Claimant was a member of the Respondent’s Sacco Member No. 40514, and as at the date of withdrawing his membership, the Respondent had received a sum of Kshs 157, 000/= from the Claimant as savings.

2. That in 2023, the Claimant gave the Respondent notice to refund his deposits which the Respondent failed, neglected and or refused to refund in breach of the Respondent’s by-laws, necessitating the filing of this Statement of Claim dated 9th January, 2024 for recovery of the sum of Kshs 157, 000/= plus interest at court rates until payment in full.

3. The Respondent filed their Statement of Defence dated 19th March, 2024 stating among others that:i.The Statement of Claim is replete with concealment of material facts as the claimant has employed all efforts to hide from the Tribunal the resolution of the AGM that all refunds be suspended and which was binding to all membersii.That the Respondent society has been through so much turmoil and financial challenges and it is overwhelmed by various applicants seeking to withdraw from the society as a result of mismanagement by previous committee which has been subjected to judicial review in the High Court and pending hearing and determinationiii.That in numerous cases of withdrawal by its members, the Respondent requires and it is necessary to have a more structured approach to handle the outstanding matters or cases failure to which the existence of the society is uncertain

4. This Tribunal on 15th August 2024 gave directions for the Respondent to file and serve Statement of Accounts within seven days and for the parties to file their written submissions. The Claimant filed their written submissions dated 20th October, 2024 stating among others:a.That his total savings as at the time of withdrawing his membership amounted to Kshs 157, 000/= and the same is reflected in his member’s statementb.That the Claimant was to be refunded his shares within 60 days from the date of withdrawal, and the failure to refund necessitated the filing of the statement of claimc.That the Respondent’s Defense is frivolous and does not raise triable issues, it only states that the Respondent society has been through so much turmoil and financial challenges

5. The Respondents did not file a Statement of Accounts but filed their written submissions dated 11th October 2024 stating among others:a.That the Claimant has not proved or sufficiently established that the Respondent is in possession of his shares/savings and or deposits and without prejudice has not satisfied/met the condition for a refundb.That by-laws of the Respondent provide that shares are non-refundable and cannot be withdrawn even on exit from the Sacco but can be transferred to another member of the Sacco, facts that are within the knowledge of the Claimantc.That as per the resolutions of 21st April 2022 Annual General Meeting, members resolved and agreed to stop all further refunds as the same is unsuitable taking into account the large number of former members exiting the Sacco. This has been brought by the liquidity challenges facing the Respondent, a fact that is well known and within the Claimant’s knowledged.That an Inquiry Report published vide Gazette notice 4558 and dated 22nd April 2022 was to the effect that the Respondent Sacco is not in a position to clearly determine members who took loans and or who guaranteed other members and as such the Respondent cannot tell which members are deserving of refunds and those who are note.That the new management are new in office and it is only prudent that they be given time to recover the critical documents which include members Statements of Accountf.That on without prejudice basis, should the Tribunal find that there is any money owed to the Claimant, the Respondent pleads with the Tribunal that it can only manage a payment schedule and or to settle the sum in terms of Kshs.2,000/- to Kshs.5, 000/- per month and this is due to the numerous cases of withdrawal by its members.

Has the Claimant sufficiently proved his claim on a balance of probabilities and is he entitled to a refund? 6. The Respondent has not pleaded any liability on the part of the Claimant in terms of loans and guarantees to other members, and in as much as we sympathize with the Respondent’s financial situation, we are also alive to the fact that a member has a right to his deposits. The Co-operative Societies Act is clear on the concept of voluntary membership to a Co-operative Tribunal, and as long as a Co-operative society is in operation, it is expected to honor its obligations to its members. The Legal Notice No. 82 (The Sacco Societies Act) at Section 21 (6) is also clear to the effect that:“A non-deposit-taking Sacco society shall refund to a member the amount accumulated in the member's non-withdrawable account within sixty days of receiving the written notification of the member to withdraw from membership of the Sacco society.”

7. The Claimant produced his statements showing deductions and the Respondent did not dispute the amounts owed, and this Tribunal is inclined to believe that the Respondent owes the Claimant Kshs 157, 000/= in refunds.

Final Ordersi.The Claimant’s Statement of Claim dated 9th January, 2024 succeeds

ii.Judgment is entered in favour of the Claimant for the sum of Kshs 157, 000/= with costs and interest at Tribunal rates.

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 MutaiNgichabe advocate for ClaimantNo appearance for RespondentHON. B. KIMEMIA - CHAIRPERSON - SIGNED - 27. 2.2025