Joseph Thangichu Kamau v Teleposta Sacco [2021] KECPT 526 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE  NO.281  OF 2020

JOSEPH THANGICHU KAMAU................................................................CLAIMANT

VERSUS

TELEPOSTA SACCO.............................................................................RESPONDENT

RULING

The matter for determination is a Notice of Motiondated 7th October 2020 filed on 8th October 2020 seeking the following orders; -

1.  Judgment on admission be entered in favor of the Claimant/ Applicant in the amount of 200,020/= plus costs and interest.

2.  Cost of this Application be awarded to the Claimant.

The Application is based on the grounds on the face of the application and supported by affidavit of Odhiambo Geoffrey Gengadeponed on 12th September 2020.

The Application is opposed vide a Replying Affidavit of Samwel Maumbe, a senior staff of the Respondent deponed on 27th October 2020.

The Application was ordered to be dispensed with by way of written submissions. Claimant filed their submissions on 19th/ November /2020 and the Respondent filed theirs on 1st February 2021.

The gist of the Application is that the applicant seeks judgement in admission of Ksh200,020 plus costs and interest.

The applicant submitted that the Respondent in paragraph 2 in their statement of defence dated 18th September 2020 admitted owing the claimant Ksh200,020 exclusive of share capital. The admission was unequivocal and to allow this matter to proceed to trial will be a waste of judicial time since, at the face value the said defences raises no triable issues.

That, further, vide the Replying Affidavit the Respondent made the same admission hence the same be allowed as an admission.

The Respondent in their written submissions confirmed that the Respondent had not refused to refund but that they were facing financial constraints. That they were open for negotiations with the claimant in order to settle the matter amicably.

We have perused the pleading, documents, affidavits and note that the claimant`s claim is for a refund of Ksh219,020. We have also noted paragraph 2 of the defence as filed. An admission must be clear and unequivocal hence the statement of the Respondent in the defence at paragraph 2 indeed is construed to confirm that the claimant`s deposits are Ksh200,020 exclusive of share capital. We note that share capital is not generally refundable hence the reason why there is a difference between amount claimed and amount admitted. The Respondent did not file their statement of account hence we are not able to determine the amount of share capital as submitted.

In the circumstances therefore, we find that the statement of defence at paragraph 2 admits an amount of Ksh200,020. We accordingly enter judgement in favor of the claimant against the Respondent for the admitted amount of Ksh200,020 in the suit plus the cost of the application.

Hon. B. Kimemia                  Chairperson                Signed      27. 5.2021

Hon. J. Mwatsama              Deputy Chairperson  Signed      27. 5.2021

Mr. P. Gichuki                       MemberSigned      27. 5.2021

Tribunal clerk                       Leweri

Genga  Advocate for  claimant/Applicant : Present

Maumbe  on behalf  of  Respondent  : Present

Mention  on  27. 7.2021 for further  direction  for the  unadmitted amount.

Hon. B. Kimemia                  Chairperson                Signed      27. 5.2021