Mutua v Kencom Sacco Ltd [2023] KECPT 1036 (KLR)

Mutua v Kencom Sacco Ltd (Tribunal Case 432 (E250) of 2021) [2023] KECPT 1036 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1036 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 432 (E250) of 2021

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

November 30, 2023

Between

Onesmus muia Mutua

Claimant

and

Kencom Sacco Ltd

Respondent

Judgment

1. The matter for determination was brought vide a statement of claim dated and filed on 8/10/2021. The Claimant avers to be a member of the Respondent and that on 11/3/2021 he wrote to the Respondent expressing his wish to withdraw his membership and sought a refund of his shares.The claimant claims that on diverse dates he wrote to the respondent on email and visited the respondent’s office with an aim of seeking refund without success.

2. The claimant therefore prays for judgement against the respondent for;a.The said sum of Kes 326,075. 00/= being shares contributions.b.Costs of the suit and interest until payment in full.c.Any other relief so deemed appropriate by this Honorable Tribunal.The claim was accompanied by a verifying affidavit and witness statement sworn by Onesmus Muia Mutua dated and filed on 8/10/2021. Also accompanied by a list of documents dated 8/10/2021. The List has;a.Letter of withdrawal.b.Emails.c.Statement of Account.

3. In response to the claim, the respondent filed a statement of defence Dated 26/11/2021 and filed on 17/12/2021. The respondent denies that the claimant wrote to the respondent expressing his wish to withdraw membership from the respondent and denies that the claimant is entitled the Kes 326,075. 00/=.

4. At the proceedings, the respondent offered to pay the claimant in installments as follows:a.The respondent has paid the 1st installment.b.2nd installment is end of March 2022. c.3rd installment is end April 2022.

5. Being a refund matter parties were directed to file their Written Submissions to dispense off with the claim but at the time of writing this judgment none had filed their Written Submissions.

Issues a.Whether the claimant issued a proper notice of withdrawal?

b.Whether the claimant is entitled to a refund of Kes 326,075. 00/=?

Analysis Issue One- a. Whether the Claimant issued a proper Notice of Withdrawal? 6. The Claimant avers he sent a withdrawal letter but the Respondent denies the same. The Claimant has provided a letter dated 10/03/2021 which clearly states that the Claimant wishes to formally withdraw his membership from 11/03/2021.

7. As such the notice of withdrawal constitutes a proper notice withdrawal and request for refund. In addition, the Claimant has attached emails seeking a refund of his shares.

Issue Two- b. Whether the Claimant is entitled to a refund of Kes 326,075. 00/=? 8. The Respondent does not deny the Claimant was their member but only wish for time to pay the same in installments. The Respondent has made a partial payment of Kes 218,000. 00/= leaving a balance of Kes 167,000. 00/=.

9. The respondent has clearly admitted to the claim as per order 36 rule 1 and order 13 rule 2 of the Civil Procedure Rules, 2010 which provides that a party may apply to Court where admission of facts has been made. In ChoitramvNazari the Court of Appeal stated the admission should be clear and unequivocal. As such we are convinced the claimant’s claim as of 28th November is Kes 167,000. 00/=.

Upshot 10. Judgement is entered in favour of the claimant against the respondent for Kes 167,000. 00/= plus costs and interests.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahNo appearance by parties.Judgment read in absence of the parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023