[2024] KECPT 224 (KLR)

Yuaya & 3 others v Bob Morgan Cooperative Saving & Credit Society Limited (Tribunal Case 989/E1011 of 2022) [2024] KECPT 224 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 224 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 989/E1011 of 2022

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

March 7, 2024

Between

Michael Odhiambo Yuaya

1st Claimant

Ngovu Mutua Ngovu

2nd Claimant

Joyfred Muasya Musyoka

3rd Claimant

John Kiara Maina

4th Claimant

and

Bob Morgan Cooperative Saving & Credit Society Limited

Respondent

Judgment

1. The 1st, 2nd , 3rd and 4th Plaintiffs/Claimants moved the Tribunal by filing a Statement of Claim/Plaint dated 29th November 2022 seeking for Judgment against the Defendant for:a.Refund of individual shares amounting to Kshs. 519,744. 29/=.b.Interest on (a) at court rates.c.Cost of the suit.

2. In support of the Statement of Claim, the Plaintiffs/Claimants filed their Individual Witness Statements, Verifying Affidavit , Letters of Resignations, Retirement Notices, Members Statements , Plaintiffs List of Witnesses and List of Documents together with copies of Identity Cards.

3. A request for default judgment by the Claimants vide an Application dated 10th February 2023 was disallowed by the Tribunal and instead ordered the Respondents to file their Defence within seven (7) days.

4. On 15th February, 2023, the Defendants/Respondents filed a Statement of Defence and sought that the suit be dismissed with costs.

5. Apart from the Application for Memorandum of Appearance dated and filed on 1st February 2023, and a Statement of Defence dated and filed on 15th February, 2023 the Defendant/Respondent did not file any supportive documents.

Disposal of the Claim 6. The Tribunal gave directions on 20. 6.2023 that the claim being a matter for refunds, it should be dispensed by way of written submissions.The Respondent was allowed 21 days to file and serve the Claimants with their written submissions while the Claimants were given 30 days to respond.

7. The Claimants/Plaintiffs filed their written submissions dated 3rd October 2023 on 6th October 2023 while the Respondents have not filed any written submissions.

8. Without the Respondents written submissions the Tribunal is left with no option but to frame the issues for determination as:a.Whether the Claimants/Plaintiffs served the Notice of Withdrawal upon the Respondent.b.Whether the Claimant warrant an order for refund of the amounts claimed.

Service of Notice of Withdrawal 9. That the Respondent in paragraph 4 of the Statement of Defence denied that the Claimants/Plaintiffs have cleared with the Defendants’ accounts and therefore not entitled to the refund of the shares of Kshs. 98,906. 88/=, Kshs. 140,137/=, Kshs.149,300/= and Kshs. 131,400/= which total to Kshs. 519,744. 29/=.

10. The Tribunal have perused the documents filed by the Claimants/Plaintiffs and our finding is that there is a handwritten letter by Michael Odhiambo Yuaya dated 10. 9.2021 which is addressed to the Defendant advising them that he has been retired and wish to cease being a member.Prompted by the Defendant’s Retirement Notice dated 6. 7.2021 the 2nd Claimant/Plaintiff sent a handwritten notice to the Defendant dated 13. 8.2021 which was stamped by the Defendant on the same date.Equally the 3rd Claimant vide a handwritten letter dated 24. 1.2022 advised the Defendants to stop to deduct from his salary money and to further stop remittance to the Sacco.Finally, the 4th Claimant wrote to the Defendant on 25. 8.2021 and requested for refund of his shares due to his retirement in Bob Morgan security.

11. On the argument that the Claimants /Plaintiffs have not cleared with the accounts, we find this untenable because the member statements attached by each of the Claimants/Plaintiffs shows the various entries which culminated to final sum in each of the members statements.We find it ironical that the Defendant is the one who prepared the members statement yet they still argue that the Claimants have not cleared.

12. On this issue of service of Notice to Withdraw, the Tribunal is of the view that in the absence of evidence from the Defendants/Respondent, the Claimants served the Defendants with the Withdrawal Notices. 13. On whether the Claimant warrant an order for refund of the amounts claimed.We have perused the members statement of each of the Claimants and noted that as at 30th November, 2021 the 1st Claimant- Michael O. Yuaya member No. 99032 had a balance of Kshs. 98,906. 88/= while the 2nd Plaintiff/Claimant Mr. Ngovu Mutua Ngovu – statement show a credit balance of Kshs. 140,137. 61/= as at 20. 8.2021 and the 3rd Plaintiff/Claimant Ms. Joyfred Muasya Musyoka statement show a credit balance of Kshs. 149,300/=, finally the statement of the 4th Claimant/Plaintiff show a credit balance of Kshs. 131,400/=.

14. The Defendants have not demonstrated anywhere that the Claimants/Plaintiffs have any liability with the Sacco.

Conclusion 15. We therefore find that the Claimants have established their case on a balance of probability. Accordingly, we enter judgment in favor of the Claimants against the Respondent/Defendant for the sum of Kshs. 519,744. 29/= plus costs and interest at the Tribunal rates from the date of filing this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahOnsombi for Claimant.No appearance for Respondent.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024