Olomunyak v Metropolitan National Sacco Society Ltd [2024] KECPT 900 (KLR)

Olomunyak v Metropolitan National Sacco Society Ltd (Tribunal Case 183/E229 of 2023) [2024] KECPT 900 (KLR) (27 June 2024) (Judgment)

Neutral citation: [2024] KECPT 900 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 183/E229 of 2023

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

June 27, 2024

Between

Isaac P. Olomunyak

Claimant

and

Metropolitan National Sacco Society Ltd

Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member)

Judgment

Judgement Of The Tribunal 1. The matter before us for determination is the Claimant’s Claim for refund of the sum of Kshs. 358,000/= together with interest at commercial rates of 14% per annum from 5th September, 2022 until judgement or at such rates and for such period as the Tribunal deems fit.

2. The claim is set out in the Statement of Claim dated 1st December, 2022 and filed on 28th March, 2023.

3. The Claimant states that he was member number 12942 of the Respondent. That at all times the Respondent received monthly shares contribution deducted from the Claimant’s salary. That under the Respondent’s rules and regulations, he had a right to withdraw from the Respondent’s membership by giving the requisite notice whereupon the Respondent is obliged to refund all the monies deducted together with interests accrued thereon. That the Respondent issued a Notice to withdraw from the Respondent’s membership in October, 2022. That further to the withdrawal, the Claimant wrote to the Respondent a letter seeking remittal of a total refund of his shares and dividends amounting to Kshs. 358,000/= as at 5th September, 2022. That the Respondent has neglected, refused and/or failed to pay the said sum of any part thereof despite demand from the Claimant.

4. Together with the Statement of Claim, the Claimant filed his Witness Statement dated 1st December, 2022 wherein he reiterated the contents of the Statement of Claim and a list of documents dated 1st December, 2022 containing the Claimant’s letter dated 5th September, 2022 and a Demand Letter dated 25th October, 2022 addressed to the Respondent and the Certificate of Posting thereof.

5. The Respondent responded to the statement of claim vide its Statement of Defence dated 24th April 2023, filed on 28/4/2024. In the Defence, the Respondent confirms that the Claimant has been its member, member 12942 operating Fosa Account number 0000367019 and was making monthly member deposit installments, but deny that it received share contributions deducted from the Claimant’s salary and further denies that the Claimant issued a letter of withdrawal from and a letter of request for refund. The Respondent further states that as per the 2022 Annual General Meeting resolutions by the General Assembly members resolved and agreed to schedule refunds after two years due to liquidity challenges facing the Respondent. As fact, the Respondent alleges to be within the knowledge of the Claimant. That the Claimant’s suit against it be dismissed with costs.

6. The Respondent filed a list of Documents dated 24th March, 223 listing Claimant’s member statement, Sacco By-laws, 2019 and 2022 Annual General Meetings Resolutions therein, through the actual documents are not attached thereto.

7. The Tribunal directed parties to file Written Submissions in support of their respective cases, however, as at the date of Writing this judgement, neither party’s Submissions were on record.

Determination. 8. We have considered the documents of the parties on record and are satisfied that the Claimant has proved his case against the Respondent on a balance of probability for the following reasons: -i.The Respondent does not dispute the Claimant’s membership and deposit contribution.ii.The Respondent does not dispute the amount owed to the Claimant.iii.The demand letter from the Claimant’s Advocate is duly stamped in receipt by the Respondent.iv.The Claimant in his letter dated 5/9/2022 seeks refund of shares of Kshs. 358,000/=.v.No evidence of payment is produced by the Respondent despite the lapse of the refund schedule period of two years.

9. Consequently, we enter judgement in favour of the Claimant against the Respondent in the sum of Kshs. 358,000/= with costs of suit and interest at Tribunal rates from the date of judgement until payment in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF JUNE, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 27. 6.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 6.2024HON. BEATRICE SAWE MEMBER SIGNED 27. 6.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 6.2024HON. PHILIP GICHUKI MEMBER SIGNED 27. 6.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 6.2024HON. PAUL AOL MEMBER SIGNED 27. 6.2024TRIBUNAL CLERK JONAHMkamani advocate holding brief for Gitonga Muriuki advocate for the Respondent.Isaac Olomunyak- No appearanceMkamani advocate- We pray for 30 days stay of execution.Tribunal order- 30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 6.2024