Lucas v Metropolitan National Sacco Ltd [2025] KECPT 153 (KLR)

Lucas v Metropolitan National Sacco Ltd (Tribunal Case 431/E709 of 2022) [2025] KECPT 153 (KLR) (30 January 2025) (Judgment)

Neutral citation: [2025] KECPT 153 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 431/E709 of 2022

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

January 30, 2025

Between

Chacha Juma Lucas

Claimant

and

Metropolitan National Sacco Ltd

Respondent

Judgment

1. This Tribunal is to consider and deliver judgment on a Statement of Claim filed by the Claimant on 26. 7.2022 seeking for:a.A refund of Kshs. 98,000/= being his shares contributions.b.Costs and interest of this suit.c.Any other relief so deemed appropriate by the Tribunal.At the same time, the Claimant filed a Verifying Affidavit and a List of two (2) Documents all dated 26. 7.2022 and filed on the same day.

2. In response, the Respondent filed a Statement of Defence dated 1. 11. 2022, a Respondent’s List of Witnesses and List of Documents dated the same day.

3. The file shows that the Tribunal allocated dates to mention this matter on several occasions of which the Respondent did not make appearance.However, on the mention date of 2. 7.2024 Mkamani the advocate of the Respondent attended. The Tribunal directed the Respondents to serve the Claimants with a Statement of Account and to file and serve written submissions to confirm compliance on 12. 8.2024.

4. At the pre-trial directions held on 8. 10. 2024 the Respondents stated that the Statement of Account which was served on the Claimant shows that he was paid of which the Claimant denied that he has not been refunded the Kshs. 98,000/= to date.

5. While examining the documents filed by the Claimant we note that the Claimant served his resignation from the membership of the Respondent on 15. 5.2018 and it was received the same day by proof of stamp.We have also perused through the member account printed on 11. 9.2019 which shows the end balance as Kshs. 98,000/= as at 30. 4.2018.

6. In the Respondent’s Statement of Defence we read under paragraph 5 the Respondent’s convoluted statement that the Claimant has been accessing the said funds while under paragraph 6 of the same Respondent’s Statement they go ahead to state that “the claimant is expected to sign the funds transfer from which will enable the Respondent to facilitate remittance of the Claimant’s balance funds into the Claimant’s account”.

7. At the end of paragraph 6 the Respondent confirm that:“without signing the funds transfer form, the funds cannot be remitted into the Claimant’s account.”The literal interpretation this last sentence under paragraph 6 of the Respondent’s statement is that since the claimant has signed the funds transfer form, the funds has not been remitted to his account and therefore the allegation that he has been accessing the funds is a prevarication which is fabricated to justify falsehood.

8. In an oral statement made by the Claimant, to the Tribunal, he confirmed that on various occasions he visited the offices of the Respondent wanting to sign the funds transfer form, but he has not been successful because the staff at the reception could not allow him to go beyond the reception or to call for me the manager or staff member who could bring the form to me to sign.

Analysis 9. Reading through the evidence in the Tribunal’s file, we note that when the Claimant filed his Statement of Claim and the Supporting documents on 26. 7.2022 it took about four (4) months for the Respondents to file their Defence on 1st November, 2022. The act of the Respondent is going against the provisions of Order 7 Rule 1 of the Civil Procedure Rules 2010 which provide that:“Where a defendant has been served with summons to appear he shall, unless some other or further order be made by the court, file his Defence within 14 days after he has entered an appearance in the suit and serve it on the Plaintiff within 14 days from the date of filing the Defence and file an affidavit of service”.Apart from filing a notice to enter appearance vide an application dated 17. 10. 2022, there is no other record of Affidavit of Service in the file to show that the Respondent served the Claimant with the Statement of Defence.

10. We further note that the Respondents treated this matter trivially by attending the Tribunal’s mention dates in a sporadic manner and even failed to file written submissions as ordered by the Tribunal on 16. 9.2024.

11. Under the circumstances, this is a case where if the Claimant was represented by an advocate, the advocate would have invoked the provisions of Order 10 Rule 3 of the Civil Procedure Rules 2010 way back in 2022. The Rule provides that :“Where a defendant fails to serve either the Memorandum of Appearance or Defence within the prescribed time, the court may on its own motion or an application by the plaintiff, strike out the Memorandum of Appearance or Defence as the case may be and make such order as it deems fit in the circumstances(emphasis ours)

12. Reading through the file and deducing from the evidence in the file we find that this is a straight forward claim which is being complicated by the Respondent with an aim to buy time or to frustrate the Claimant by making conflicting statements that do not add up.

13. By attending the mentions sporadically and not complying with the pre-trial directions given by the Tribunal we conclude that the Respondent did not have any plausible Defence and that they were hiding from the truth.

14. Given that the Respondents have not demonstrated how the Claimant’s claim was satisfied as alleged and given that the funds transfer form has not been given to the Claimant to sign and the fact that the Respondents have created a barrier to enter their offices against the Claimant, we find that the scale of probability in this claim tilts towards the Claimant in form of a judgment.

15. In conclusion, we therefore hereby enter judgment in favour of the Claimant against the Respondents for a refund of Kshs. 98,000/= plus interest and cost from the date of filing this suit until payment is made in full.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025. Hon. J. Mwatsama - Deputy Chairperson Signed 30. 1.2025Hon. Beatrice Sawe - Member Signed 30. 1.2025Hon. Fridah Lotuiya - Signed 30. 1.2025Hon. Philip Gichuki - Member Signed 30. 1.2025Hon. Michael Chesikaw - Member Signed 30. 1.2025Hon. Paul Aol - Member Signed 30. 1.2025Tribunal Clerk MutaiNo appearance by parties.Judgment delivered in absence of parties.Hon. J. Mwatsama - Deputy Chairperson Signed 30. 1.2025