[2024] KECPT 1508 (KLR)

Wangombe v Metropolitan Nation Sacco Limited (Tribunal Case 385/E447 of 2022) [2024] KECPT 1508 (KLR) (26 September 2024) (Judgment)

Neutral citation: [2024] KECPT 1508 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 385/E447 of 2022

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

September 26, 2024

Between

Olive Wangui Wangombe

Claimant

and

Metropolitan Nation Sacco Limited

Respondent

(Coram: Hon. B. Kimemia- chairperson, Hon. J. Mwatsama- Deputy chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member)

Judgment

1. The Claim herein was brought to the Tribunal by the Claimant vide Statement of Claim dated 9th June, 2022, filed on 28th June, 2022; accompanied by the Claimant’s List of Document s and Witness Statement of even date. The Claimant’s Claim against the Respondent is for payment of Kshs. 361,255. 86/= being the Claimant’s savings with the Respondent as at the date of filing this suit, by virtue of Claimant’s membership with the Respondent.

2. The Claimant states in the Statement of Claim that on 16/12/2020, she wrote a letter to the Respondent notifying the Respondent of her desire to cease being a member of the Respondent and requesting for payment of her savings as at the said date. That the request had not been honored as at the date of suit, despite demand and notice of intention to sue having been served upon the Respondent but both went unheeded.Consequently, the Claimant prays for judgement against the Respondent for:a.An order for payment of Kshs. 361,255. 86 together with interest at court rates.b.Costs of the Claim together with interest.c.Any other relief the Tribunal may deem fit to grant.

3. The Respondent responded to the Claimant’s Claim vide the Statement of Defence dated 25th July, 2022 accompanied by the Respondent’s List of Documents of even date.In the Statement of Defence, the Respondent admits that the Claimant has been its member, holding membership number 27702 and operating FOSA Account No. 0000301898 and was making monthly deposit, member installments and further states that no withdrawal notice was received as alleged by the Claimant. That the letter dated 16th December, 2020 attached to the Claimant’s List of Documents is not stamped by the Respondent, an indication that the same was not received by the Respondent as alleged by the Claimant.The Respondent further denies that the sum saved by the Claimant is Kshs. 361,225. 86/= and states the total balance sum as per the Claimant’s Statement of Account. That as per the 2022 Annual General Meeting resolutions by the General Assembly, members resolved as agreed to schedule refunds after two years due to the liquidity challenges facing the Respondent. That as a former member of the Respondent, the Claimant is bound by the Respondent’s by-laws and Annual General Meeting resolutions and there are resolutions on how the Claimant and other withdrawing members are to be refunded, as there is a refund schedule, although as of May, 2022, no further refunds are being refunded for a period of two years in line with the resolutions passed by the Annual General Meeting. That as per its 2022 Annual General Meeting resolutions, members resolved and agreed to stop all further refunds on account of the liquidity challenges faced by the Respondent as is well known to the Claimant that consequently the Claimant’s refund has to be put in abeyance in accordance with the above-mentioned Annual General Meeting resolutions. That the Respondent did not receive any demand letter from the Claimant’s advocates as alleged by the Claimant and if the same was ever received, it was of consequence owing to the foregoing.

4. Consequently, the Respondent prays that the Claimant’s suit against it be dismissed with costs.The Claimant made a rejoinder on the matters raised by the Respondent in its Defence, vide Reply to Defence dated 28th July, 2022, wherein she reiterates the contents of the Statement of Claim and particularly that the notification to withdraw from membership was duly given and the Claimant is not aware of any resolution putting in abeyance payment of her savings with the Respondent. That the Defence is a sham without triable issues and ought to be struck out and judgement be entered as prayed in the Statement of Claim.The parties were directed to file Written Submissions.

5. The Claimant filed Written Submissions dated 25th January, 2024. As at the time of Writing this Judgement, the Respondent had not filed Submissions. The Claimant’s Advocate Submitted that the Claimant is entitled to the refund of shares of Kshs. 361,255. 86/=. That the Respondent did not file any documents to substantiate the contention that the Claimant’s savings amounted to Kshs. 351,255. 86/=. that, however it is a clear contention that the Claimant had saved as least Kshs. 351, 255. 86/= as admitted by the Respondent when she ceased to be a member of the Respondent. That there is no valid reason why the Claimant’s savings were released to her within the 60 days contemplated under the rules and regulations of Cooperative Societies. That no minutes or resolutions were produced by the Respondent in support of the claim that members agreed at an Annual General Meeting that exiting members would have to wait for 2 years for their savings refund. That the Claimant had ceased to be a member of the Respondent by the time of the said Annual General Meeting and cannot be bound by it. That the Respondent is still in business and is receiving member money and has assets, hence there is no valid reason for withdrawing the savings of the Claimant.

Analysis And Determination. 6. We have considered the pleadings and documents filed by the parties, we have also considered the Written submissions of the Claimant and find that: -1. It is not in dispute that the Claimant was a member of the Respondent;2. It is also not in dispute that the Claimant was not a monthly contributing member of the Respondent.3. Further, it is not in dispute that the Claimant ceased being a member of the Respondent and has not been refunded her deposits.The issues for determination by the Tribunal are therefore as follows: -1. Whether the Claimant’s refund is Kshs. 361,255. 86/= or 351,255. 86/=.While the Claimant claims that his deposit amount is Kshs. 361,255. 86/=, the Respondent claims that the deposit amounts to Kshs. 351,255. 86/=. We have seen that the total amount held by the Respondent as per the Sacco is Kshs. 361,255. 86/=. While the member shares amount to Kshs.10,000/=.We are satisfied that the refundable member deposit of the Claimant is Kshs. 351,255. 86/=.2. Whether or not the Claimant is entitled to the refund of Kshs. 351,255. 86/=.

7. The Respondent admits that the Claimant has member deposits amounting to Kshs. 351,255. 86/=. The Claimant states that she wrote a Notice of Cessation of membership and withdrawal of her deposits on 16/12/2020. From the member statement produced by the Respondent and also as per the Claimant’s pay slip produced by the claimant in evidence, the deductions from the pay slip and the deposits into member account continued up to 31st May, 2021. This is a clear indication that before 31st May, 2021, notice of the cessation was received. That the Respondent states in the statement of Defence that if demand for refund and notice of intention if served, would be of no consequence owing to the resolution not to pay member refunds is quite telling and, in the circumstance, we inclined to believe that as at 31st May, 2021, the Notice of Cessation of membership and demand for refund had been served upon the Respondent. On that account, the claimant is therefore entitled to refund of her deposits.

3. Whether or not the Respondent should be ordered to refund the Claimant the sum of Kshs. 351,255. 86/=.The Claimant states that there is no reason put forth by the Respondent why it has not refunded the Claimant the deposit sums, and that the Respondent be ordered to pay the same.The Respondent states that all refunds which were due to members stopped for a period of two years from the May of 2022 by virtue of a resolution of the Respondent’s Annual General Meeting.

8. However, we agree with the Claimant’s Submissions that the minutes and written resolutions of the said Annual General Meeting have not been produced before this Tribunal as evidence of the Respondent’s contentions.Further, we agree with the Claimant that the Respondent has not put forth any evidence to stop this Tribunal from ordering payment of the Claimant’s deposit refund.

9. Consequently, we hold that the Claimant has proved her Claim against the Respondent and do enter Judgement in favour of the Claimant against the Respondent in the sum of Kshs. 351,255. 86/= together with costs of suit and interest thereon at Tribunal rates from the date of filing suit until payment in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024TRIBUNAL CLERK MUTAINo appearance by parties.Judgment delivered in absence of parties.