Muchoki v Metropolitan National Sacco Society Limited [2023] KECPT 775 (KLR)

Muchoki v Metropolitan National Sacco Society Limited (Tribunal Appeal 936 (E1018) of 2022) [2023] KECPT 775 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 775 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Appeal 936 (E1018) of 2022

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

September 21, 2023

Between

Gothard Kamau Muchoki

Claimant

and

Metropolitan National Sacco Society Limited

Respondent

Ruling

1. The claims for determination is dated 06/12/2022 filed on 06/12/2022. The Statement of Claim was accompanied by a Verifying Affidavit dated 06/12/2022 and filed on the same day together with a witness statement by the Claimant and a List of Documents included a withdrawal letter dated 02/07/2020 and a copy of the Statement of Account.

2. The Claimant arears that on 02/07/2020 he wrote to the Respondent indicating his resignation and ultimate withdrawal as a member of the Respondent. Further the Claimant served the respondent with the withdrawal letter and requested for his refund amounting to Kshs. 93,701. 57/= the Claimant claims that the Respondent has however either refused or ignores to honor its obligation to refund the Claimants deposits. It is the Claimants position that the Respondent has unlawfully, illegally maliciously and unjustifiable withheld his deposits.

3. The Respondent filed a statement of defence dated 11/01/2023 on 20/01/2023 together with a list of documents and witness statement dated 11/01/2023 and filed on 20/01/2023.

4. The Respondent denies ever receiving the withdrawal letter indicating that the claimants letter was never received further the Respondent arears that through its 20222 Annual General Meeting members resolved and agreed to stop all further refunds due to liquidity faced by the respondent

5. The matter being one of refunds the parties were directed to file written submissions to dispense of with the main suit. The Claimant filed the written submissions on 29/05/23 while the Respondent filed theirs on 04/08/2023

6. Having considered the pleadings and written submissions by both parties the issue for determination is one whether the claimant is entitled to their refund

7. It is not disputed by the Respondent that the Claimant was their member and held savings and contributions amounting to Kshs 93,701. 57/= the Respondent borne of contention is that the claimant did not follow the procedure for withdrawal

8. The Respondents Statement of Defence is contradictory in nature in that, they indicate he did not receive a letter of withdrawal from the Claimant while at the same time indicate no refund may be done due to liquidity challenges. Membership at Cooperative Societies are voluntary in nature in the same breath leaving or withdrawing membership is voluntary. In Wambui Ndiritu vs Joseph Kiprono & another (2005)1 EA334 the court held that a party has a legal obligation to provide evidence that will best facilitate the proof of existence those facts in question the claimant has preferred evidence that he indeed requested to withdraw from the Respondent. further the claimant has shown that he indeed deposited and saved Kshs 93,701. 51/=

9. It is the Tribunals opinion that liquidity challenges is not reason enough to deny a member their refunds. The Cooperative SocietyAct.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHKorir advocate- we pray for 30 days.Stay of executionGotherd Kamau- that is in orderTribunal order-30 days stays of execution granted to Respondent.