Kapaito v Metropolitan National Sacco Society Limited [2024] KECPT 1179 (KLR)

Kapaito v Metropolitan National Sacco Society Limited (Tribunal Case 182/E228 of 2023) [2024] KECPT 1179 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1179 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 182/E228 of 2023

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

July 25, 2024

Between

Elizabeth Mukami Kapaito

Claimant

and

Metropolitan National Sacco Society Limited

Respondent

Judgment

1. The matter before us for determination is the Claimant’s claim made vide Statement of Claim dated 1. 12. 2024 and filed on 28. 3.2023. The claimant states that she was member number 12227 of the Respondent, that the Respondent at all material times received monthly shares contribution deducted from the Claimant’s salary; that under the Respondent’s rules and regulations , she had a right to withdraw from being a member of the Respondent by giving the requisite notice where upon she was entitled to get refund of all monies deducted together with interest thereon, that in May, 2022, the Claimant issued a Notice to Withdraw from the Respondent’s membership and further requested in writing for refund of his shares and dividends amounting to Kshs. 466,903/= as at 20. 9.2022, that the Respondent has neglected, refused and/or failed to pay the said sum or any part thereof hence her claim for the said amount with interest accrued thereon.The Claimant filed on 28. 3.2023 a witness statement dated 1. 12. 2022 and a List of Documents of even date; containing the request for refund and Demand Notice.

2. The Respondent on 10. 8.2023, filed a Statement of Defence dated 24. 4.2023 together with a Witness Statement and List of Documents both dated 19. 4.2023, containing Claimant’s member statement, Sacco By-laws 2019 and 2022 Annual General Meeting resolutions.In the Defence, the Respondent admits that the Claimant has been its member number 11678 and operated FOSA account number 0000395179 and was making monthly member deposit installments. The Respondent further denies receiving a withdrawal letter and states that the Withdrawal Letter attached by the Claimant is not stamped by the Respondent in receipt; that as per the resolutions of the General Assembly in the 2022 Annual General Meeting, members resolved and agreed to schedule refunds after two years due to the liquidity challenges facing the Respondent; that the Respondent does not engage negligent or malicious retention of member’s funds upon issuance of notice of cessation of membership or upon demand for the same.

3. Further, the Respondent denies owing the Claimant the sum of Kshs. 466,903/= together with interest thereon and puts the Claimant to strict proof thereof; that no demand or intention to sue was received by the Respondent.

Analysis and Determination 4. We have considered all the documents filed by the parties herein, and observe as follows:a.The Claimant was without doubt a member of the Respondent and contributed monthly his share deposits.b.As per the member statement of the claimant produced by the Respondent, the Claimant’s balance was Kshs. 400,156. 99/= as at 3. 10. 2022. c.On account of liquidity issues, a decision was made during the Annual General Meeting of the Respondent held to structure member refunds and member withdrawals would continue to be honored subject to the following:i.First priority to issuance of loans and advances to continuing members;ii.Next priority to withdrawal requests from retirees; andiii.Withdrawal requests from others would be clearly demarcated on first come , first served basis and that they would be ranked subject to available liquidity.iv.The Claimant withdrew from the membership of the Respondent and sought refund and made demand thereof; in September and October 2022.

5. In view of the foregoing and noting that there was no suspension of refunds in the Annual General Meeting of March 2022 and there being no evidence to the contrary, we hereby enter judgment in favour of the Claimant in the sum of Kshs.400,156. 99/= together with costs of suit and interest at Tribunal rates from the date of filing claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024TRIBUNAL CLERK JEMIMAHChacha advocate holding brief for kamau advocate for ClaimantMs. Wanjiru Advocate holding brief for Thimba advocate for Respondent.Ms. Wanjiru advocate - I pray for 30 days stay of executionChacha advocate- No objection.Order: 30 days stay of execution granted.HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024