[2021] KECPT 601 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.12B OF 2018

WASHINGTON SILVANUS WASHIALI KHWALE.......................................CLAIMANT

VERSUS

MUMIAS CANE FARMERS CO-OPERATIVE

UNION LIMITED...................................................................................1ST RESPONDENT

MR. ALLOYS MANDU CHAIRMAN, MUMIAS

CANE FARMERS CO-OPERATIVE UNION LIMITED...................2ND RESPONDENT

JUDGMENT

1. The Claimant filed suit vide Statement of Claim(Plaint) dated 23rd October, 2018 seeking for prayers that:

a.The Plaintiff has Kshs.200,000/= in cash deposited on the 1st Defendant/Respondent bank account plus Kshs.20,500/= deposited to the 1st Defendant’s Bank account through Mumias Sugar Company Limited as cane proceeds deductions for his shares and membership fee in his parent primary society – Mumias cane growers Co-operative Society. The plaintiff prays for the immediate refund of his family’s 200,000/= with interest as from the year 2011 at the current bank rates from the 1st Defendant;

b.As per the Co-operative Act, the 2nd Defendant with his entire office stands dissolved and none could offer themselves for the office until after three years and the plaintiff prays you so find;

c.That an interim office consisting of at least one member from every primary society of the 1st Defendant be put in place to cause books of account to be audited, assets recovered and reactivation of all the societies which have become dormant, within 12 months for the revival of the 1st Defendant;

d.That all the monies and assets misappropriated in the 1st Defendant be charged to the individuals involved and recovered appropriately both at the 1st Defendant and the primary societies;

e.Costs of the suit.

2. The Plaintiff avers that he has cash deposits with 1st Respondent amounting to Kshs.220,500/= which he would like to get a refund with interest from the year 2011 at current bank rates.

He claims since July 2011 there has been no annual audit of the book of accounts nor has the 1st and 2nd Respondent called for an Annual General Meeting.

He would like for the current officials to step aside and an interim office from each primary society of 1st Respondent be represented and books of account to be audited, assets recovered and activation of the 1st Respondent activities.

3. The Respondents filed a statement of Defence dated 7th November, 2018 on 9th November, 2018 and the said Defence denied the Claimant’s averments and stated the Claimant was the problem with all audit reports not being done and reprimanding him for mismanagement.

4. CLAIMANT’S CASE – EVIDENCE

Claimant testified on 10th February,2021 and claimant led evidence to the effect that he wanted a refund of Kshs.200,000/= from 1st Respondent which he deposited 7 years ago.

He adopted his witness statement and produced documents as evidence . He stated he was aggrieved how he was removed from office by 2nd Respondent with assistance from officials of Co-operative.

His prayer is for a refund of Kshs.200, 000/= which he deposited out of good will to pay the workers.

He claims since 2011 the 1st Respondent has not carried out any audits and request for an order for office to be audited and new officials to be put in place.

5. The matter proceeded in the absence of the Respondents who were aware of the date as it was taken by consent.

6. Taking into consideration the Respondent’s statement of Defence the issues for determination are:

(i) Is the Claimant a member of the 1st Respondent?

(ii) Is the Claimant entitled to a refund of Kshs.200, 000?

(iii) Interim officials.

(i) Is the Claimant a member of the 1st Respondent?

From the facts and evidence before the Tribunal the members find the Claimant is a member of the 1st Respondent and his position as chairman was relinquished in.......2011.

No evidence has been adduced to confirm his exit or resignations from the 1st Respondent.

(ii) Is the Claimant entitled to a refund of Kshs.200, 000/=?

The Claimant in his evidence stated he deposited the Kshs.200,000/= in his account on 16th August, 2011 for purposes of paying the 1st Respondent employees their dues and expected a refund back.

The Claimant now wants the said Kshs.200, 000/= to be refunded.

The Claimant being a member of 1st Respondent and having shares in the said Sacco is and can request for the refund when he so wishes.

There being no evidence of liabilities on his end we find he ought to be refunded his cash deposit.

The Respondents in their Defence and Documents filed have alluded to a report citing mismanagement by the Claimant as per a report by the Commissioner’s Office.

The report does not disclose details of the mismanagement and who is to be held liable and the extent of the liability.

With this in mind we find the Claimant is entitled to his refund of Kshs.200,000/= which is not denied by the Respondents.

(iii) interim officials to be constituted.

The Claimant would like the current office board to be dissolved and an interim office be constituted with one member from every primary society.

The status of the 1st Respondent is not known at the Tribunal and the current officials and/or office bearers not known.

The constitution of the 1st Respondent’s office is unknown and thus the members of the Tribunal cannot be seen to disturb the status quo.

UPSHOT

The final analysis judgment is entered in favour of the Claimant as against the Respondent as follows:

1. Kshs.200, 000/= be refunded to the Claimant.

2. The prayer for the 2nd Respondent and officials (to stand dissolved is not granted) fails.

3. Interim office to be constituted with all primary society and audit fails.

4. A report be filed by the Commissioner of Co-operatives on the status of the 1st Respondent and thereafter an Annual General Meeting to be held.

5. Costs and interest at court rates from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF APRIL, 2021.

HON. B. KIMEMIA CHAIRPERSON ....................................

HON. J. MWATSAMA DEPUTY CHAIRPERSON ....................................

MR. P. GICHUKI MEMBER ....................................