https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/260

Wanjugu v Doncon Sacco & another (Tribunal Case 437 of 2018) [2026] KECOPT 260 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KECOPT 260 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 437 of 2018 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 18, 2026 Between Ann Wanjiku Wanjugu Claimant and Doncon Sacco 1st Respondent Deacons EA PLC 2nd Respondent Judgment 1.The Statement of Claim dated 12th September, 2018 was filed for purposes of outstanding refunds. According to the Claimant, she was employed by Deacons E.A PLC whose management and directors operated and oversaw the management of the Respondent.According to the Claimant, Deacons E.A PLC deducted through check off from her salary a sum of Kshs. 3000/= every month, a sum that was remitted to the Respondent. That around January, 2017 when she was suspended, her savings were at Kshs. 68,000/=That despite formal resignation, the Respondent has failed to make any payments thereby exposing her to financial loses and the loss of the economic value of her money, leading to the filing of this claim for the recovery of the sum of Kshs. 68,000/= plus costs and interest. 2.The Respondent filed a Statement of Defence dated 8th February, 2022 stating among others that it has fully paid the Claimant’s contributions and only a small balance was outstanding as at the date the claim was filed. According to the Respondent, the Claimant does not deserve the reliefs sought as they made periodic payments and the Claimant is full refunded her contributions. Hearing 3.At the hearing, the Claimant adopted her witness statement and testified that her payslip of January 2017 showed her savings to be at Kshs, 39,000/= and she has not recovered anything from the Respondent.During cross-examination, the Claimant accepted that Kshs. 12,450 was deducted from her savings to offset an emergency loan she had taken leaving a balance of Kshs. 26,550/=. She also testified that the Sacco and the Housing Cooperative were not two separate societies but the same societyThe Respondent through its Chairman Simon Wambugu Mathenge testified that Deacon Sacco and Dodcon Housing are two separate societies and that the Claimant was their member till 2017 when she resigned.During cross-examination, the Respondent testified that the only money they owe the Claimant is a sum of Kshs. 17,274/= being the balance unpaid and that the Respondent has not made any profits from 2016 to declare dividends. Written Submissions 4.The Claimant filed her written submissions dated 14th November, 2025 stating among others that Dodcon Housing was being managed by the same officials who were managing Deacon Sacco, and that the Dodcon Xmass account money was not paid to her.The Respondent did not file any written submissions.We have considered the claim and the defence filed in response, the evidence adduced at trial and the submissions filed, and the only question remaining for determination is as to whether either party have proved their claims. Has either party proved their claims? 5.The beginning point of our analysis of facts in this case, is to understand whose burden is it to prove a fact before a court. Section 107 (1) of the Evidence Act guides us on that by stating that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”This refers to the legal burden of proof. There is, however, an evidential burden of proof which is captured in Sections 109 and 112 of the Evidence Act as follows:“ 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person. 112.In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.” In the persuasive High Court case of Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 6.To apply what has been stated above to the facts of this case, it follows then that it was the duty of the Claimant to prove that the Sacco and the Housing Cooperative are one and the same, and that the Respondent made profits and declared dividends. In our examination of that and the evidence adduced at the hearing, the Claimant did not table before the Tribunal any evidence to confirm that the officials of the Sacco were the same officials of the Housing Cooperative, or that the Sacco was making profits and dividends were declared over the years. As such, as a Tribunal we are not persuaded that the housing cooperative and the Sacco are one and the same, or that we need to award the Claimant dividends.In same measure, we have also applied the facts of the case as presented by the Respondent in line with the dictates of the Evidence Act on proof of facts, and our examination return the verdict that it was the duty of the Respondent to prove that they were repaying the Claimant periodically and they had settled her refunds - they haven’t done so.Be as it may, the Respondent admitted to owing the Claimant a sum of Kshs. 17,274/= as at the time the claim was filed, and as such we enter judgement for that sum. Final Orders 7.The Statement of Claim dated 12th September, 2018 partly succeeds, and judgement is entered in favour of the Claimant for the sum of Kshs. 17,274/= from the date of filing with costs and interest at Tribunal rates till payment is made in full. JUDGMENT DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18TH DAY OF JUNE, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 18/6/2026HON. BEATRICE SAWE - MEMBER SIGNED 18/6/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 18/6/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 18/6/2026HON. P. AOL - MEMBER SIGNED 18/6/2026Court Assistant - MutaiOdawa advocate for the Claimant – No appearanceMs. Gitari advocate holding brief for Mr. Tollo advocate for the 2nd RespondentMs. Gitari advocate;We pray for 30 days stay of execution.Tribunal order;30 days stay of execution granted.