Kibuchi v Faith Foundation Coop Sacco Limited [2024] KECPT 955 (KLR)

Kibuchi v Faith Foundation Coop Sacco Limited (Tribunal Case 544 of 2017) [2024] KECPT 955 (KLR) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 955 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 544 of 2017

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

May 30, 2024

Between

Jane Wangithi Kibuchi

Claimant

and

faith Foundation Coop Sacco Limited

Respondent

Judgment

1. Matter for determination if the Claimants Claim dated 4/9/2017 fled on even date. The Claimant stated that she is a member of Faith Foundation Housing Co-operative Society Limited the Respondent herein.She stated that on 15/2/2015 she wrote to the Respondent expressing interest in withdrawing membership and sought for refunds of her shares.The Claimant avers she had contributed Kshs. 193,600. 00/=She clearly states in CTC 282 of 2015 was filed but was dismissed for being filed prematurely and her prayers were for;a.The sum of Kshs. 193,600/= being shares contributions.b.Costs of suit and interest until payment in full.c.Any other relief so deemed appropriate by this Honorable Tribunal.

2. The Claimant filed a List of Documents filed on 4/9/2017 which included:1. Claimant’s Withdrawal letter dated 15th February, 2015. 2.Complaint letter dated 4th March, 2015. 3.Demand notice dated 10th March, 20154. Demand notice reply dated 28th March, 20155. Contribution receipts.6. Faith Foundation Housing Co-op. Soc Ltd. By-laws.7. Judgement of case No. 282 of 2015 delivered on 29/4/2015. The Respondent filed a Defence to the Claim dated 25/9/2017 denying the Claim by the Claimant. The even day Claimant was their member and further aver if Claimant is not entitled to any funds because the funds were stolen by the previous office bearers and prosecuted vide Kibera Criminal Case no. 4516 of 2013. The Respondent filed List of Documents dated 25/9/2017 which included1. Forensic document examination report.2. Faith Foundation Housing Cooperative Society Monthly contribution for 2013. 3.Faith Foundation Housing Cooperative Society Monthly contribution for 20144. Faith Foundation Housing Cooperative Society Monthly contribution for 20155. Certificate of Registration for Faith Foundation Housing Cooperative Society Limited.6. Faith Foundation Housing Cooperative Society Limited by laws.7. Minutes of the management committee dated 14th September, 2017. 8.Plaint for Milimani Civil case No. 836 of 2017. 9.Minutes of Annual General Meeting of Faith Foundation Housing Cooperative Society Limited held on the 16th of Jun, 2013. 10. Faith Foundation Housing Cooperative Society Limited supervisory committee report date September, 2013. 11. Minutes of Annual General Meeting of Faith Foundation Housing Cooperative Society Limited held on the 16th August, 2013 and list of Members present.12. Minutes of Annual General Meeting of Faith Foundation Housing Cooperative Society Limited held on the 15th of December, 2013.

3. The Defence raises issue of the Claimant’s previous case CTC 282 of 2015 where the same was prematurely filed and thus struck out.We find a case being struck out does not preclude the Claimant from filing another suit once the subject matter crystalizes.Order 2 Rule 15 (1) Civil Procedure Rules 2010 “At any stage of the proceedings the Court may order to be struck out or amended any pleading on the ground that it fails to disclose a reasonable cause of action…”

4. The matter came for hearing on 18/3/2021 where the Claimant testified adopting her Witness Statement dated 26/11/2020 filed on even date as her Evidence- in -Chief.She produced her documents as evidence.On Cross examination she states she would not remember whether she contributed or not.From the Respondent’s list of Documents, the Claimant has no contributions made; year 2014 – page 15 no contribution, year 2015 – page 16 no contribution.She further stated that she cannot remember whether she wrote another demand letter before filing of this suit.

5. The Respondent despite numerous opportunities granted on 18/3/2021, 5/10/2021, 29/8/2022 were not in a position to secure their Witness and as such the Court on 29/8/2022 ordered for the close of the Respondent’s case.Parties were ordered to file and serve Written Submissions with the Claimant filing Written Submissions dated 30/8/2022 on even dated. The Respondent as at the day of writing this judgement had not filed their Written Submissions.

6. He issues for determination are two.Issue one.Whether the Claimant gave adequate notice?Issue two.Whether the Claimant is entitled to get her refunds?Issue one.Whether the Claimant gave sufficient notice?The Claimant filed a case CTC 282 of 2015 which was struck out on the basis the notice period given had to crystallized and as such case was premature. The withdrawal letter by Claimant then was dated 15/2/2015 and a letter copied to the Commissioner of Co-operatives dated 4/3/2015 received by the office on even day. We also note the Claimant filed letter dated 10/3/2015 which was addressed to the Management Committee of Faith Foundation Housing Co-operative from the Commissioner for Co-operative Development.The argument by the Respondent does not hold water that the Claimant was to issue another Notice of Withdrawal.We find the original letter of 15/2/2015 stands and the notice is sufficient and as such the Claimant did give proper notice and valid.

7. Issue two.Whether the Claimant is entitled to get her refunds?The Claimant gave notice as per the Respondent’s by-laws Rule 14;"A member may resign/ withdraw from the Society after giving 6 months’ notice in writing to the Society…”We find the Claimant did give appropriate notice and is entitled to their refund.We thus shall not belabor the same and enter judgement in favour of Claimant against the Respondent for Kshs. 193,600/= plus cost and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe - Member Signed 30. 5.2024Hon. Fridah Lotuiya - MMember Signed 30. 5.2024Hon. Philip Gichuki - Member Signed 30. 5.2024Hon. Michael Chesikaw - Member Signed 30. 5.2024Hon. Paul Aol - Member Signed 30. 5.2024Tribunal Clerk JonahJane Wangithi Kibuchi- PresentFaith Foundation Coop. Sacco Limited-No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 30. 5.2024