[2021] KECPT 617 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 694 OF 2019

WELDON ROTICH....................................................................................CLAIMANT

VERSUS

METROPOLITAN NATIONAL SACCO SOCIETY LIMITED....RESPONDENT

JUDGMENT

The Claimant has moved this Tribunal vide the Statement of Claim dated 4. 11. 2019 seeking for judgment against the Respondent as follows:

a. Refund of share deposits totaling to Kshs. 77,000/-;

b. Costs and interest.

The Claimant has founded these reliefs on the fact that upon tendering his withdrawal from the Respondent, the Respondent has declined and/or neglected to refund the said savings.

Respondent’s case

The Respondent has opposed the claim vide a statement of Defence dated 13. 11. 2019. It is the Claimant’s case that the Claimant never furnished it with a Notice of withdrawal as alleged.

That even if it had received the said Notices, then it would not have refunded the said deposits since the Respondent’s member passed a resolution structuring the manner of effecting refunds and that the Claimant’s refund will be effected in January, 2022.

Disposal of the Claim

Vide the directions given on 4. 11. 2020, the claim was canvassed by way of written submissions. The Claimant filed his on 11. 11. 2020 while the Respondent did so on 16. 11. 2020. We will consider the same whilst determining the issues raised in the claim.

Issues for determination

We have framed the following issues for determination

a. Whether the Claimant has established a proper basis to warrant an order for refund of deposits;

b. Who should meet the costs of the claim?

Refund of deposits

This is a claim for refund of deposits. The Claimant contends that he withdrew from the Respondent on 5. 7.2019. That the Respondent acknowledged his resignation on 15. 7.2019. That subsequently, the Respondent has not refunded his deposits.

On its part, the Respondent has denied ever receiving the said Notice. It further argues that even if the said Notice was duly served, the Claimant would not be entitled to an immediate refund of the deposits as the resolution passed by its members in the year 2019 and approved by SASRA and the office of the Commissioner for Co-operatives sanctioned the scheduling of refunds on the basis of first come first served. That subsequently, a schedule was prepared and that the same shows that the Claimant will be refunded in January 2022.

That the Claimant is bound by the said resolutions and the by-laws and thus cannot be heard to be using the legal process to pursue his refunds.

We have considered the arguments for and against the claim. These arguments poses the following further issues for determination:

a. Whether the Claimant served the Notice of withdrawal upon the Respondent; and

b. Whether the resolutions passed by the Respondent ousts the jurisdiction of the Tribunal to make any orders regarding refunds.

Service of Notice of withdrawal

The Respondent has vehemently denied service of the Notice of withdrawal. We have perused the said Notice. It is handwritten and is dated 15. 7.2019. Whilst the same does not carry and/or contain an endorsement that the same was duly received, we have every reason to believe that the said Notice was duly served upon the Respondent.

Respondent’s Resolution

Without delving in detail about the Respondent’s reference to the Resolutions passed at its Annual General Meeting, and their binding nature, we hasten to say that the jurisdiction of this Tribunal to entertain disputes between members of a Co-operative Society and the society itself is clearly delineated by Section 76 of the Co-operative Society’s Act (Cap 490) Laws of Kenya.

The wording of the Act does not provide room for parties to maneuver. The said jurisdiction is thus not subject to or subservient to resolutions passed by the respective Co-operative Societies. With this in mind, we find the Respondent’s reference to the resolution passed in the Annual General Meeting of 2019 and endorsed by SASRA and the Commissioner for Co-operative Development inconsequential. They are of no legal effect as far as our jurisdiction to entertain claims of this nature are concerned.

Amount of monies due for refund

The claimant has claimed a refund of Kshs.77,000/=. We have however, perused his statement of account and note that the amounts due for refund is Kshs. 67,000/=.

Conclusion

The upshot of the foregoing is that we find that the Claimant has established his case on a balance of probability. We accordingly enter judgment in his favour and as against the Respondent for Kshs.67,000/= plus costs and interest at court rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021

No appearance for parties

Hon. B. Kimemia Chairperson Signed 4. 3.2021