Mbogo v Busacar Sacco Limited [2025] KECPT 356 (KLR)

Mbogo v Busacar Sacco Limited (Tribunal Case 12/E021 of 2023) [2025] KECPT 356 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KECPT 356 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 12/E021 of 2023

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

June 26, 2025

Between

David Mbogo

Claimant

and

Buscar Sacco Limited

Respondent

Judgment

1. Matter for determination is the Statement of Claim dated 13. 1.2023 filed on even date.

2. The Claimant avers to have been a member of the Respondent Sacco and on 16. 3.2021 he wrote to the Respondent expressing his wish to withdraw from Respondent and sought for a refund.

3. Claimant further avers even Kuscco wrote to Respondent on 23/03/2021 and November 2022 to refund shares but all fall in a deaf ear.

4. The Claimant avers the Respondent owes loan kshs.176,000/= and his prayersa).The said sum of Kshs.176,000/=b).Costs of the suit and interest until payment in full.c).Any other relief so deemed appropriate by this Honourable Tribunal.

5. The Claimant filed List of Documents dated 13/1/2023 and the same contain:1. Statement2. Pay slips

6. The Respondent filed Statement of Defence dated 8/2/2023 filed on 16/02/2023 where they denied the content of the Statement of Claim.

7. The Respondent state they wrote responding to Kusco via letter dated 25/3/2021 explaining the Claimant’s circumstances.

8. Respondent avers their constitution requires one to repay all outstanding loan before any refund.

9. Respondent filed List of Witness dated 8/2/2023 on 16/2/2023 which from Adrew Muniliha -secretaryJoshua Nyamu—Chairman

10. Respondent also filed list of documents dated 8/2/2023 which include :1. Buscar Sacco society by laws.2. Cooperative bank statement3. Application for loan.4. Letter dated 25. 5.2021 to KUSCCO5. Letter dated 21. 6.2021 Okello Stephen & Company advocate6. Secretary statement7. Chairman statement8. Treasurer statement9. Busacar Savings & Credit Cooperative Society Statement

11. Matter being one of the refunds, the Tribunal directed the same to be canvassed by way of written submissions

12. The Claimant filed their written submissions dated 15/03/2025 on 9/1/2025 received on 15/5/2025 at the Tribunal.

13. The Respondent as at the date of writing this judgment has not filed their written submission.

14. The issue of determination in this refund claim is: the

15. How much is the Claimant is entitled for refund and how much if at all?

16. The Respondent do not deny the Claimant was their member. All things are challenging is that the Claimant was a guarantor for a defaulted loan.

17. The Claimant himself did not have a loan or have any loan liability.

18. The Respondent’s witness statement on by both Adrew Munikha and Joshua Nyamu state in paragraph 7 Claimant acted as a guarantor on a loan disbursed and a liability for recovery lies on him on its amount guaranteed.

19. Further the Respondent avers they requested Claimant to give them documentary evidence from his check off company that is, Acropath Kenya limited to assertion the amount claimed and Claimant did not provide the evidence.

20. The Claimant while filing this Claim filed his statement of account from the Respondent and as of 30/6/2020, he had savings of Kshs.176,000. 00/=.

21. The Respondent assertions of them not resolving how much they owe Claimant is neither here nor there since the Statement of account is clearly filed their end and have not disputed or denied their statement.

22. We do agree that Claimant has a responsibility to Respondent to ensure he clears himself from the guarantorship obligation before refund

23. The loan form clearly shows only Kshs.20,000/= was the guaranteed amount.

24. We have also noted; the Respondent have not brought any evidence to show the loanee therein has defaulted.

35. As such we are not convinced the Claimant should not be refunded their dues.

36. On a balance of probability, we are Incline to Claimant.

Upshot 37. Judgment is entered in favor of the Claimant against Respondent for Kshs.156,000/= having deducted Kshs.20,000/= share capital plus cost and interest.

JUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 26 .6. 2025HON. BEATRICE SAWE - MEMBER SIGNED 26 .6. 2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 26 .6. 2025HON. PHILIP GICHUKI - MEMBER SIGNED 26 .6. 2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 26 .6. 2025HON. PAUL AOL - MEMBER SIGNED 26 .6. 2025Tribunal Clerk A.GechikoNo appearance by parties.Judgment delivered in the absence of parties.HON. J. MWATSAMA – DEPUTY CHAIRPERSON SIGNED 26/06/2025