Kinyua v Metropolitan National Sacco Society Limited [2024] KECPT 1175 (KLR)

Kinyua v Metropolitan National Sacco Society Limited (Tribunal Case 788/E868 of 2022) [2024] KECPT 1175 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1175 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 788/E868 of 2022

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

July 25, 2024

Between

Jane Wangare Kinyua

Claimant

and

Metropolitan National Sacco Society Limited

Respondent

(Coram: Hon. B. Kimemia-Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

1. The matter for determination is Statement of Claim dated 22. 9.2022 filed on 29. 9.2022. The Claimant avers she was a member of the Respondent since 2005 with membership number 12082. The claimant accumulated savings to a sum of Kshs. 442,486. 63/=.In January 2021, Claimant avers he took up a loan facility with the Respondent and was servicing the same at a rate of Kshs. 27,800/= through a standing order deduction her salary from her employer Teacher Service Commission with outstanding balance at the date of filing suit being Kshs. 298,400/=.

2. On 9. 5.2022 Claimant wrote to Respondent intending to withdraw her membership and requested to have her outstanding loan balance offset from her shares and balance to be released to her.The Respondent did not respond.The Claimant’s prayers are thus:a.A mandatory order directing the Respondent to immediately offset the Claimant’s outstanding loan balance against her shares.b.The total balance of share contribution made by the Claimant upon offsetting of the loan be remitted to the Claimant.c.Dividend (if any) accrued during the pendency of the suit.d.Costs of this suit.e.Any such other or further relief as this Honourable court may deem appropriate.

3. Claimant filed her list of documents dated 22. 9.2022 on 29. 9.2022 being:i.Copy of Identity card of the Claimant.ii.Copy of Pay-slipiii.Loan Payment Receiptiv.Letter dated 9th May 2022. v.Letter dated 18th May 2022 from the Teachers Service Commissionvi.Letter dated 24th May, 2022vii.Any other document that may be adduced with leave of court.

4. The Respondent filed Statement of Defence dated 16. 10. 2023 on 17. 10. 2023. The Respondent admitted Claimant was its member holding membership number 12082 and operating FOSA Account number xxxxxx making monthly member deposits.The Respondent however denied receiving a notice from the claimant and further alleges as per 2022 Annual General Meeting resolutions members resolved and agreed to schedule refunds after 2 years due to liquidity challenges.Respondent filed witness statement sworn by Brian Mulwa, dated 16. 10. 2023 and Respondent List of Documents dated 16. 10. 2023:i.Claimant’s member statementii.Sacco By-lawsiii.2019 and 2022 Annual General Resolutionsiv.Any other relevant documents.We note from the file the parties had filed a consent dated 14. 6.2023 where the monthly contribution of Kshs. 3000/= being deducted to have ceased.The outstanding loan balance of Kshs. 157,420. 05/= be offset from the Claimant’s shares and balance be fully settled.The issues for determination is thus issue oneWhether the Claimant is entitled to her refund?The Claimant admitted to having a loan balance of Kshs. 157,420. 05/= as such before withdrawing from any cooperative if a member has any liabilities the same have to be paid off first or offset before refund is done.The Claimant has rightly agreed to have her liabilities be offset and balance be paid to her.

5. This is a straight forward matter in our view. The Claimant is entitled to her refund less her liabilities and the consent dated 14. 6.2023 spells out what had been agreed.Why the Respondent did not follow the consent though has not been explained.As per the Claimant’s sort dated/stamped 27. 6.2023 filed on 16. 10. 2023 the Claimant had Kshs. 446,883. 63/= as her savings.The loan balance offset was for Kshs. 157,420. 05/=.The balance for refund to which claimant is moved is Kshs. 289,463. 58/=As such we find in favour of Claimant against Respondent for Kshs. 289,463. 58/=. Plus, costs and interest in the claim at Tribunal rates from 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 JemimahKamene advocate holding brief for Wanja advocate for Claimant.Thimba Advocate for Respondent.Thimba advocate for Respondent- I pray for 30 days stay of executionKamane advocate for Claimant- No objectionOrder: 30 days stay of execution granted.Hon. B. Kimemia Chairperson Signed 25. 7.2024