Jabuto & 4 others v Mwiti [2022] KECPT 157 (KLR)

Jabuto & 4 others v Mwiti (Tribunal Case 139 of 2021) [2022] KECPT 157 (KLR) (17 February 2022) (Judgment)

Neutral citation: [2022] KECPT 157 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 139 of 2021

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Jackline Akoth Jabuto & 4 others

Claimant

and

David Mwiti

Respondent

Judgment

1. The Claim for determination is dated 24/9/20 filed on 8/8/21. The claim seeks for;-a.Refund of accumulated deductions totaling to 1,607,401. 74;b.Interest on (a) above at court rates thereon until payment in full;c.Costs of the suit.The Claimants claim they are members of Stima Sacco Society and the Respondent is a member of the Stima Sacco Society as well.The Claimant avers that in June, 2017 the Respondent staff member Number 31690 approached the Claimant to guarantee him a loan of Kshs. 2,300,000/- and they agreed.The Respondent defaulted in repayment of the loan and upon the Stima Sacco Society offsetting against the Respondent’s deposits the loan balance was Kshs. 1, 607,401. 74 to which Stima Sacco Society recovered by deducting the money from the Claimant’s herein.

2. The Claimants avers they received Notice of payment of guaranteed loan from Stima Sacco Society Ltd and deductions were made in the following terms.a)Caroline Wangui Muya – Kshs. 267,900. 29 @ Kshs. 9,110 repayable in 35 months;b)Jackline Akoth Jabuto received notices from Sacco on 20/2/2019;c)Reward Wambayi Bwire – received notices from Sacco on 20/2/2019. The Claimant aver the Respondent is liable to indemnity then for loss of their shares and unpaid dividends plus interest as illustrated below;-a)Jackline Akoth Jabuto – Kshs. 305, 000/-b)Reward Wambayi Bwire – Ksh. 104,026/-c)Elizabeth Nyambura - Ksh. 172,090/-d)Joseph Abala Osore – Ksh. 313,275/-e)Caroline Wangui Munga – Ksh. 237,968/-

3. The Respondent failed to enter appearance and a request made for entry of Judgment.On 25/5/21 Interlocutory judgment was entered on 31/5/21. The court on 16/8/21 directed for Claimant to file written submissions to dispose off the suit which was for formal proof.The Claimant filed written submissions dated 18/10/21 and filed on even date.Issues for determination are as follows;ISSUE ONEWhether the Respondent defaulted his loan obligations and owes the Claimants Kshs. 1,607,401. 74. ISSUE TWOWhether the Claimants are entitled to be paid dividends for the two years.

4. ISSUE ONEWhether the Respondent defaulted his loan obligations and owes the Claimants Kshs. 1,607,401. 74?The Claimants as per their documents filed in court in the Claimants list of documents dated 24/9/20 filed on 8/3/21 produced;-a)Notices of payment of guaranteed loan from Stima Sacco Society Limited dated 30th November, 2017 and 20th February, 2019;b)Counter Service Statement for Caroline Wangari Munga dated 30th May, 2019;c)Credit Account Statement for Jackline Akoth Jabuto dated 17th January, 2020;d)Credit Account Statement for Elizabeth Nyambura Gacheru dated 21st February, 2020;e)Credit Account Statement for Reward Wambayi dated 10th March, 2020;f)Credit Account Statement for Joseph Abala Osore dated 13th March, 2020;g)Credit Account Statement for Elizabeth Nyambura Gacheru dated 3rd July, 2020;h)Credit Account Statement for Jackline Akoth Jabuto dated 10th July, 2020;i)Loan Statement for Jackline Akoth Jabuto dated 29th July, 2020;j)Statement of Account for David Mwiti; andk)Member Statement for Caroline Wangui Munga.The said documents evidence that indeed the Claimants savings have been deducted to service the Respondent’s loan to their detriment.The Claimants have also produced the Notices from Stima Sacco evidence that indeed the Respondent has defaulted his loan and their savings have being attached.

5. ISSUE TWOWhether the Claimants are entitled to be paid dividends for the two years.The Claimants claim they are entitled to be paid dividends but the same is not payable because of the loan default by the Respondent.In the witness statement of Joseph Abala Osore filed on 8/3/21, paragraph 7 they claim they had not received their dividends for two years because of the unsettled balance and interest accruing from the Respondent loan.Unfortunately the only way to confirm that indeed dividends are payable is by filing or the same can only be evidenced through the Audited financial Accounts of Stima Sacco which have not been produced by the Claimants to substantiate their claim.

6. ConclusionTo this end we are satisfied that the Claimants has proved his claim against the Respondent for refund accumulated deductions totaling to Ksh. 1,607,401. 74, plus costs and interest from date of filing suit.

RULING, PREPARED READ AND DELIVERED ON VIRTUALLY THIS 17TH DAY OF FEBRUARY, 2022 WITH WHOM P. GICHUKI AND B. AKUSALA AGREE.Hon. Mjeni Mwatsama Deputy Chairperson Signed 17. 2.2022Gichuki Member Signed 17. 2.2022B. Akusala Member Signed 17. 2.2022In the presence ofLenaiyan for the ClaimantDavid Mwiti – No AppearanceSignedHon. Mjeni Mwatsama17/2/2022