Achungo v Postmail Sacco Limited [2023] KECPT 410 (KLR)

Achungo v Postmail Sacco Limited (Tribunal Case 451 of 2019) [2023] KECPT 410 (KLR) (27 April 2023) (Judgment)

Neutral citation: [2023] KECPT 410 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 451 of 2019

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

April 27, 2023

Between

Douglas Gad Achungo

Claimant

and

Postmail 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

Claimant’s Case 1. This claim was instituted by way of a Statement of Claim dated July 29, 2019 and filed on July 29, 2019. The Claimant alleges that he issued notice of withdrawal from the Respondent on August 8, 2015 and further sought refund of Kshs 89,652/= as share refunds.The Claimant states that the Respondent has refused to refund his shares refunds despite issuing proper Notice to Withdrawal from the Respondent.Claimant is praying for:a.The said sum of Kshs 89,652/= being shares contributions.b.Costs of the suit and interest until payment in full.c.Any other relief so deemed appropriate by this Honourable Tribunal.

Respondent’s Case 2. The Respondent filed a Statement of Defence dated August 20, 2019 on the same date.The Respondent denies that the Claimant wrote a Notice of Withdrawal to the Respondent.He denies allegation by the Claimant that he made several visits to the Respondent in pursuit of his shares.Respondent states that the Claimant received his shares refund in full and that he owes respondent Kshs 25,648/= and a loan of Kshs 60,000/=.The Respondent accepts that there is no record that the Kshs 60,000/= loan was paid to the Claimant.Admits that Claimant was a member of the Respondent and that Claimant had no other liabilities with the respondent beside the ones in this claim.

3. Respondent has admitted that there was an oversight on its part and that the deductions in claimants payslip do not reflect the actual figure. States that the Claimant owes the Respondent Kshs 60,000/= in form of loan.

Issues for determination 4. The following are the issues that this Tribunal finds necessary for determinationa.Whether the Claimant issued a proper Notice of Withdrawal from the Sacco.b.Whether the Claimant is entitled to Kshs 89,652/=.c.Who bears the cost of the suit.We shall thereafter analyze the issues as follows:

Analysis Of Issuesa.Whether the Claimant issued a proper notice of withdrawal from the Sacco.

5. From the evidence on record the Applicant through his advocate communicated his withdrawal through letters dated April 8, 2015 and one dated July 18, 2018 addressed to the Claimant’s employer.This has however been denied by the Respondent in paragraph 3 of the Defence.b.Whether the Claimant is entitled to Kshs 89,652/= share refund.

6. The Claimant prays for shares refund of Kshs 89,652/-. He has produced copies of monthly statements from the Respondent which reflect a figure of Kshs 87,800/= as normal shares contribution.The Respondent has disputed this figure and goes ahead to claim that the Claimant owes the Respondent Kshs 25,648/- and Kshs 60,000/= as unrecovered. 7. The Respondent has not produced adequate evidence to proof that they are owed by the Claimant.The respondent avers that the claimant was refunded his shares in full but has not filed documents to prove this.

8. The Respondent avers that the Claimant was given a loan of Kshs 60,000/= which was disbursed in 2 cheques of Kshs 40,500/= and Kshs 19,500/= but has no proof it was repaid. No deductions on loan are reflected in the Claimant’s pay slip filed in court.The Respondent has failed to furnish this court with proof of the amounts they are claiming from the Claimant.We thus find that the Claimant is entitled to his shares refund of Kshs 89,652/=.c.Costs who bears the cost of the suit?**Costs follow the event.

9. Judgment is found in favour of claimant against Respondent for Kshs 89,652/= plus cost and interest in the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahNo appearance by parties.Judgment delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023