David Njoroge v Lina Saving & Credit Coop Society Limited [2024] KECPT 75 (KLR)

David Njoroge v Lina Saving & Credit Coop Society Limited (Tribunal Case 135 of 2021) [2024] KECPT 75 (KLR) (29 January 2024) (Judgment)

Neutral citation: [2024] KECPT 75 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 135 of 2021

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

January 29, 2024

Between

David Njoroge

Claimant

and

Lina Saving & Credit Coop Society Limited

Respondent

Judgment

Facts of the case. 1. The Claimant, a member of the Respondent’s Sacco filed this case on 3rd November, 2021 seeking among others:a.A Permanent Injunction to restrain the Chairman of the Respondent’s Sacco from arbitrarily harassing/suspending/evicting or halting the operations of his drivers.b.A Permanent Injunction restraining the Chairman of the Respondent’s Sacco from arbitrarily confiscating the official badges of his drivers.c.Damages for loss of earnings (for days not worked for due to harassment by the chairman of the respondent Sacco).d.A refund of his share contributionse.A refund of his Sacco deposits.

2. In summary, the Chairman of the Respondent’s Sacco according to the Claimant had arbitrarily threatened and harassed the Claimant’s drivers, thereby paralyzing the operations of his two motor vehicles. This to him, trampled on his rights as a member of the Respondent’s Sacco and also made him lose some earnings.

3. Upon service, the Respondent filed his Statement of Defence and availed evidence before court, and from that evidence, the following things came out:i.That the Claimant is no longer a member of the Respondent’s Sacco as he resigned willingly through a letter dated 25th March, 2022. ii.That following the Claimant’s withdrawal of membership, he was refunded his Sacco deposits to the tune of Kshs. 67,210/=.iii.That when the Claimant registered to join the Respondent’s Sacco, he committed through signing that he would follow all rules and regulation.iv.That the Claimant flouted some of the commitments he had agreed with the Sacco like fueling at Lina Oil Petrol Station where all members of the Respondent’s Sacco fuel.v.That the Sacco has a procedure for suspension of members and that procedure was followed to suspend the Claimant for violating the Sacco By-laws and other agreements he had made with the Respondent’s Sacco.

4. As at the time of writing this Judgment, some prayers are already spent as the Claimant is no longer a member of the Respondent’s Sacco and as such it will be impractical or nugatory to ever consider them. There are only three main issues remaining to be determined:i.Damages for loss of earningsii.Share contribution of Kshs. 70,000/=.iii.Cost of the suit.

5. We will look at the issues collectively.

Damages for loss of earnings, share contribution of Kshs. 70,000/= and the cost of the suit.First, from the Amended Statement of Claim, the Claimant has limited his loss of earnings within a defined period but has failed to compute with exactitude the amount of loss he wants this tribunal to award him.Second, evidence has been adduced to confirm that the Claimant vehicles were not grounded during the period he is claiming as they were still in operation in other routes. This in essense mean that even if we were to consider the loss of earnings he has prayed for, if he was to compute them with exactitude, he would be earning twice for that period.Third, in the event that the Claimant’s vehicles were restricted from operating, which there is no evidence to confirm, the suspension would have been justified as the claimant also failed to keep his word on fueling at the agreed petrol station where all members committed to fuel at. Equity demands that whoever comes to it seeking justice, must also come with clean hands. That you cannot claim that your rights have been violated and you are seeking damages for loss of earnings in the name of justice, yet you have also flagrantly violated some regulations and rules you committed to follow.

Final orders:i.The Amended Claim filed on 3rd November, 2021 has not been proved on a balance of probabilities hence the claim is dismissed with each party to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2024. Hon. Beatrice Kimemia - Chairperson Signed 29. 1.2024Hon. Beatrice Sawe - Member Signed 29. 1.2024Hon. Fridah Lotuiya - Member Signed 29. 1.2024Hon. Philip Gichuki - Member Signed 29. 1.2024Hon. Michael Chesikaw - Member Signed 29. 1.2024Hon. Paul Aol - Member Signed 29. 1.2024Tribunal Clerk JemimahGichuki for ClaimantSafari holding brief for Kimacia for RespondentHon. Beatrice Kimemia - Chairperson Signed 29. 1.2024