Kenneth Kiplagat Cheruiyot v Mu-84 Sacco Limited [2019] KECPT 35 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT KISUMU

TRIBUNAL CASE NO. 463 OF 2017

KENNETH KIPLAGAT CHERUIYOT...................................CLAIMANT

VERSUS

MU-84 SACCO LIMITED...................................................RESPONDENT

JUDGMENT

What is before as for determination is the claimant’s claim dated 17. 7.2017 seeking the following prayers.

(a) A declaration that the respondent is in breach of membership subscription terms with the claimant and therefore an order for a refund of Kshs.85,800/= being deposits, dividends and shares with interest accrued on the and deduction made thereafter from.

(b) Loss of damages of inconveniences as a result of failure to honor the withdrawal notice and failure to effect payments to the claimant.

(c) Costs and interest of the claim.

Interlocutory judgment was entered on 13. 8.19 and the matter came up for formal proof on 7. 10. 19.

CW1 KENNETH KIPLAGAT CHERUIYOT stated that he recorded his written statement on 17. 7.2017 and adopted it as his evidence- in-chief. He stated that he was the respondent’s member No. 95 and he applied for a loan for his motor vehicle KBJ 853W which had mechanical problems. That the respondent declined to advance him a loan so he repaired it and when he took it back, the motor vehicle was suspended. That he wrote a letter but the respondent did not respond but instead wrote to National Transport and Safety Authority (NTSA) to withdraw his motor vehicle from membership. He therefore issued a demand letter and filed this matter. He prayed for refund of his shares of Kshs.85,800/= as per his statement.(Exhibit 6) damages as a result of lost fingers of Kshs.3000/= daily since 2015 and costs and interest.

Submissions were filed on 3. 12. 19.

We have carefully considered the evidence on record. We note that indeed the claimant was a member of the respondent and he produced his statement as member No.95. We have noted the letter dated 10. 6.2015 addressed to the claimant that the respondent is seeking for his withdrawal of membership from Giokonza Sacco due to flouting of regulations under National Transport and Safety Authority (NTSA) and by-laws prohibiting public vehicles from registering under two (2) Saccos and accordingly his termination of membership from the respondent.

We have noted contents of the letter dated 15. 7.15 addressed to National Transport and Safety Authority(NTSA) for de-registration and removal of the claimant’s motor vehicle from MU-84 Sacco as a result of the expulsion. Thereafter, the claimant wrote a letter dated 25. 8.2015 seeking clarification and way forward in the matter.

These documents on record indicate that indeed the claimant was expelled from the respondent.

However, the written statement on record differs from his statement on Oath and the said letters indicate that the claimant was flouting the rules by being a member in two Saccos. This is confirmed by his filed and signed letter dated 20. 6.16 requesting for replacement of motor vehicle registration KAW 662X with the previous vehicle KBJ 853N which the management had stopped operation when the claimant refused to return the vehicle from Gioconza Sacco. This clearly indicates that the claimant flouted the rules hence his expulsion was justified.

The claimant alleges to have contributed Kshs.85,800/= as shares as per the statement of account exhibit No.6 as at 16. 6.2015. This is not disputed hence th same should be refunded.

On prayer (a) therefore, the claimant was in breach of the membership of the respondent and no evidence that on interest and dividends accrued on the said shares has been proved. Therefore he is only entitled to his shares.

On Prayer (b); loss of damages of inconvenience as a result of failure to honor the withdrawal notice and failure to effect payments to the claimant for this prayer, we note that the statement on Oath and the witness statement have given contradictory evidence in regard to the reason for withdrawal and/or expulsion. The claimant was expelled as a result of flouting the rules as clearly shown in his letter and the letter by the respondent. No loss or damages have been proved to have been occasioned by the respondent in this matter. This prayer is therefore dismissed as it has not been proved on a balance of probability.

The upshot of the foregoing is that we find that the claimant is only entitled to refund of deposits amounting to Kshs.85,800/= plus costs and interest of the suit.

Judgment read and delivered in open court, this 6th day of December 2019

In the presence of :

Claimant : No Appearance

Respondent : No Appearance

Court Assistant : Charles Maina

Hon.B.Kimemia - Chairman  Signed

Hon.F. Terer  - Deputy Chairman Signed

P.Swanya  - Member  Signed