Akinyi v Metropolitan National Sacco Society Ltd [2023] KECPT 795 (KLR)

Akinyi v Metropolitan National Sacco Society Ltd (Tribunal Case 209 of 2021) [2023] KECPT 795 (KLR) (Nairobi) (3 August 2023) (Judgment)

Neutral citation: [2023] KECPT 795 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Nairobi

Tribunal Case 209 of 2021

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

August 3, 2023

Between

Judith Emily Akinyi

Claimant

and

Metropolitan National Sacco Society Ltd

Respondent

Judgment

1. The claim for determination dated 27/04/2021 filed on 27/04/2021. The Claimant avers that on 5/04/2020 she withdrew her membership from the respondent and sought for a refund of her contribution of Kshs. 57,620. 71/=. The Respondent filed her witness statement dated 27/04/2021 and filed on 27/04/2021. She also filed a list of documents dated 27/04/2021 on 27/04/2021. The list included;a.Withdrawal Letter dated 05/04/2020b.Copy of National ID Card No. 22953312c.TSC Clearance form (16/06/2019)d.TSC payslip for November 2020e.Demand Letter by advocate.

2. The Respondent filed a statement of defense dated 17/12/2021 on 07/01/2022. The Respondent denies the claim by the Claimant. The Respondent avers that they did not receive any withdrawal notice from the Claimant. However, the Respondent avers that the Claimant’s refund is scheduled for payment on 17/05/2022 as per Annual General Meeting Resolutions, which according to the Respondent are binding to the Claimant.The Respondent filed a list of witnesses dated 17/12/2021 on 07/01/2022. The Respondent also filed a list of documents dated 17/12/2021 on 07/03/2022, which included;a.Claimant’s member statement.b.SACCO by-lawsc.2019 Annual General Meeting Resolutions.

3. This being a matter of refunds, the parties were directed to file written submissions. The Claimant filed her submission dated 04/05/2023 on 02/06/2022. The Respondent filed their written submissions dated 04/05/2023 on 02/06/2023.

4. Having considered the pleadings and written submissions by both parties the issue for determination is one:Whether the Claimant is entitled to their refund.The Respondent claims that the Claimant was their member and held savings and contributions amounting to Kshs. 53,620. 71/= and not Kshs. 57,620. 71/= as claimed by the Claimant. The Respondent was directed by the Tribunal to furnish the Tribunal with Statement of Accounts to confirm their claim. However they have not done that. It is trite law that he who alleges should prove. The Claimant filed her payslip indicating that she indeed contributed to the Respondent. Section 25 of the Co-operative Societies Act requires that Respondent should keep proper records for all the moneys is received. It is therefore the responsibility of the Respondent to proffer such accounts as evidence.

5. The Cooperative Society Act read together with the Cooperative Societies Rules of 2004 requires that members are entitled to refunds upon expulsion or withdrawal of membership.

6. The Claimant has no liabilities preventing payments of the refunds. The liquidity issues and challenges are not reason enough to deny the Claimant her refund.

Determination. 7. In the upshot, on a balance of probabilities, we thus find in favor of the Claimant against the Respondent for Kshs. 57,620. 71/= plus costs and interest in the claim at Tribunal rates from date of filing claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 3. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 3. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 3. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 8.2023HON. PAUL AOL MEMBER SIGNED 3. 8.2023Tribunal Clerk JemimahKorir advocate for RespondentOdhong for ClaimantKorir advocate for Respondent- I pray for 30 days stay of executionOdhong advocate for claimant - No objectionOrder- 30 days stay of execution granted.Dr. Hashim for Claimant- No objectionOrder: 30 days Stay of Execution granted.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023