Maingi v St. Marys Transport Sacco Society Ltd [2023] KECPT 912 (KLR)

Maingi v St. Marys Transport Sacco Society Ltd (Tribunal Case 697 of 2019) [2023] KECPT 912 (KLR) (Civ) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 912 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 697 of 2019

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

August 31, 2023

Between

Richard Mugambi Maingi

Claimant

and

St. Marys Transport Sacco Society Ltd

Respondent

Judgment

1. The Claim is through a Statement of Claim dated 28/6/2021 and filed on 26/07/2021 as an amended Claim. The Claimant also filed a Witness Statement and a Verifying Affidavit sworn on 15/11/2019. A List of Documents was also filed on 05/11/2019 and filed on the same date. The Respondent filed a Statement of Defence dated 11/12/2019 filed on 18/12/2019.

The Claimant’s Case. 2. Claimant Witness 1 was the Claimant himself, Richard Mugambi. He adopted his Witness Statement dated 28/06/2021 filed on 26/07/2021 and a list of documents dated 28/06/2021 filed on 26/07/2021 and produced as Claimant Exhibit 1 as Evidence in Chief.The Claimant averred that he was desirous of withdrawing from the Sacco as of 10/09/2019. He further gave evidence that the Sacco denied him access to pick passengers from the SACCO’s (Respondent’s) stage. The Claimant prayed for a refund as prayed in the Statement of Claim.

Respondent’s Case. 3. The Respondent did not call any witness however, through the Statement of Defence, the Respondent averred that the Tribunal has no Jurisdiction as pleaded in Paragraph 8 of the Claim.

Analysis and Determination.Both parties were directed to file Written Submissions. However, up to the time of writing this judgement, only the Claimant had filed their Written Submissions dated 25/11/2022 and filed on 16/12/2022. After perusing all the pleadings and Written Submissions, it is the Tribunal’s opinion that there are two issuesi.Whether the Tribunal has jurisdiction to entertain the claim?ii.Whether the Claimant is entitled to a refund?iii.Whether the Claimant is entitled to compensation for loss of income. Issue One i. Whether the Tribunal has jurisdiction to entertain this claim? 4. In Motor Vessel Lilian’s v Calter Oil (Kenya) Limited, the court held jurisdiction is everything. Without it, a court has no power to make one more step.The Co-operative Tribunal is established under the Cooperative Societies Act and has its jurisdiction stipulated. Section 76 indicates its Jurisdiction by stating the disputes that the Tribunal should handle. Section 76(2) states that a dispute includes a claim by a member, past member for any debt or demand due from a Cooperative Society, whether such debt or demand is admitted or not. We find that the Tribunal has jurisdiction to listen and entertain the present claim.

Issue Two ii. Whether the Claimant is entitled to a refund?It is trite law, that he who alleges must prove as was held in Wambui Ndiritu v Joseph Kiprono and Another [2005] EA 334. The Claimant produced a Loan Statement showing a balance of Kshs. 220,679/=. The Claimant accepted being given Kshs. 40,000/= for repairs of his vehicle. Thus the prayer for Kshs. 180,679/=.The Cooperative Societies Act read together with the Cooperative Societies Rules 2004 requires that members are entitled to refunds upon expulsion or withdrawal of membership.We find that indeed the Claimant is entitled to the refund and has proved as much. Issue Three iii. Whether the Claimant is entitled to compensation for loss of income.Equity demands that there can be no wrong without a remedy. The Claimant pleaded that he was unfairly denied access to the Respondent’s authorized loading bay, a claim the Respondent did not defend. This according to the Claimant crippled the Claimant’s operations. The Claimant further pleaded that he lost Kshs. 4,000/= per day from 16/10/2019 to date. He however did not produce any evidence documentary to support that claim. This prayer must be specifically pleaded and proved. There being no proof to show how, this prayer fails.

UpshotFrom the foregoing, the Tribunal, on a balance of probabilities, finds in favour of the Claimant against the Respondent.

Orders.1. The Respondent refunds the Claimant Kshs. 180,679/=2. Prayer for general damages for loss of earning capacity fails.3. Costs to follow the cause.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHMs. Mwanzia advocate holding brief for Mr. Mutua advocate for the claimant.No appearance by respondent.Judgment as delivered on 31. 8.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023