Barasa v Bob Morgan Sacco Society Limited [2025] KECPT 278 (KLR)

Barasa v Bob Morgan Sacco Society Limited (Tribunal Case 950/E1158 of 2023) [2025] KECPT 278 (KLR) (29 April 2025) (Judgment)

Neutral citation: [2025] KECPT 278 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 950/E1158 of 2023

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

April 29, 2025

Between

Harrison Wafula Barasa

Claimant

and

Bob Morgan Sacco Society Limited

Respondent

Judgment

1. The Statement of Claim dated 13th December, 2023 was filed by the Claimant on 22nd January, 2024.

2. Therein, the Claimant states that on or about 2019, the Claimant being Payroll No. 98386 of the Respondent formally withdrew from the society and requested refund of his shares totaling to Kshs. 145,800/=; that despite demand and notice of intention to sue having been issued the Respondent has not made good demand hereby necessitating this claim.The Claimant’s prayer against the Respondent is for Judgement for:i.Payment of his total contribution Kshs. 145,800/=.ii.Such orders and directions as it may deem fit to meet the ends of notice.iii.The Respondent to pay the costs of this claim.iv.Interest on the above at Court Rates.

3. The Statement of Claim is accompanied by the Claimant’s Statement dated 13th December, 2023 filed on 22nd January, 2024 and the List of Documents dated 13th December, 2023 and filed on 22nd January, 2024.

4. In response to the Statement of Claim, the Respondent filed a Statement of Defence dated 30th January, 2024.

5. Therein, the Respondent denies the contents of Paragraph 3 of the Statement of Claim and states on a without prejudice basis, that if the Claimant is entitled to the refund of Kshs. 145,800/=, the same is payable after clearing the outstanding loans, guarantees and less the non-refundable fee of Kshs. 1,000/=; further, the Respondent denies the contents of Paragraph 4 of the Statement of Claim that demand and notice of intention were issued to no avail.

6. The Defence is supported by the Respondents List of Witnesses dated 5th February, 2025 and The Witness Statement dated 5th February, 2025 both filed on even date.

7. Parties were directed to canvass the matter by way of Written Submissions; wit Notice to Issue to the Respondent’s advocate who had failed to attend before The Tribunal on all the dates that the matter came up.

8. On 5th February, 2025, the Claimant filed his Written Submissions dated 10th December, 2024. However, as at the date of writing this Judgement, the Respondent had not filed any submissions.

Claimant’s Submissions: 9. The Claimant submits that as per The Respondent’s By-Laws, a member ought to be refunded his shares within 60 days from the date of withdrawal; further, the Claimant has submitted extensively on the subject of Burden of Proof on a Balance of Probability and with the support of Legal Authorities argues that the Claimant has proved his case on a Balance of Probability; that the Respondent’s Statement of Defence raises no triable issues, is frivolous, baseless and has no leg to stand and ought to be struck out and Judgement be entered for the sum of Kshs. 145,800/= with interest and costs.

Determination: 10. We have considered the pleadings and all the documents filed by the parties as well as the Claimant’s Submissions and find only one issue for determination, that is whether or not the Claimant is entitled to prayers sought in the Statement of Claim dated 13th December, 2023.

11. The Claimant’s membership in the Respondent Sacco is not disputed by The Respondent. In the Witness Statement dated 5th February,2025, the Respondent’s Witness, Bernard Musembi confirms that the Claimant was the Respondent’s member; Member 502-98386.

12. Further, the Respondent’s said witness states that as per the Claimant’s member statement, the Claimant had Kshs. 144,800/= shares as at 31st December, 2019.

13. The Claimant’s payment supported by his Pay slip that he had contributed Kshs. 145,800/= which he sought to be refunded is not credible; considering that in the Statement of Defence, the Respondent sates, albeit on or without prejudice basis, that the sum of Kshs. 145,800/=, if refundable, would be subject to deductions including the Kshs. 1,000/= non-refundable membership fees.

14. It is clear that the Respondent does not deny the Claim and as per the Witness Statement of Bernard Musembi, the Respondent is said to have financial problems and can only pay The Claimant through installments.

15. In the upshot, we find that the Claimant’s Case has merit and having no reason to doubt that there was a registration fee of Kshs. 1,000/= and there being no evidence of existence of any outstanding loans or guarantees, we hereby allow the Claim and enter Judgement in favour of the Claimant against the Respondent on the sum of Kshs. 144,800/= plus costs of the Claim and interest at Tribunal Rates from the date of filing claim until payment in full.

SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 4.2025HON. BEATRICE SAWE MEMBER SIGNED 29. 4.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 4.2025HON. PHILIP GICHUKI MEMBER SIGNED 29. 4.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 4.2025HON. P. AOL MEMBER SIGNED 29. 4.2025Tribunal Clerk JemimahClaimant – Ngichabe advocate for ClaimantRespondent - No appearance for RespondentHON. B. KIMEMIA CHAIRPERSON SIGNED 29. 4.2025