Ombogo v Sokoro Cooperative Society [2023] KECPT 1079 (KLR)

Ombogo v Sokoro Cooperative Society (Tribunal Case 870 (E966) of 2022) [2023] KECPT 1079 (KLR) (Civ) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1079 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 870 (E966) of 2022

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

November 30, 2023

Between

Moses Omosa Ombogo

Claimant

and

Sokoro Cooperative Society

Respondent

Judgment

1. The Claim for determination is vide a Statement of Claim dated 4/11/2022 and filed on 08/11/2022. The Statement of Claim is accompanied by a Verifying Affidavit dated 04/11/2022 and filed on 08/11/2022. The Claimant also filed a Witness Statement dated 04/11/2022 and filed on 08/11/2022. Further, a List of Documents dated 04/11/2022 and filed on 08/11/2022, the Claimant’s Statement of Accounts dated 17/10/2022, a Demand Letter dated 26/09/2022 and the Claimant’s identity card.

2. The Claimant avers that he was a member of the Respondent under membership number 1349. He Claims to have withdrawn from the Respondent through a letter dated 14/05/2022. However, the Claimant avers that the Respondent has to refund his savings amounting Kshs. 125,500/= even after serving the Respondent with a demand.

3. The Claimant prays for a refund of his savings on Kshs 125,500/= and cost and interest of the suit.

4. The Respondent filed a Response to the Statement of Claim dated 10/02/2023 on 15/02/2023. The Respondent also filed a Witness Statement and List of Documents dated 10/02/2023 and filed on 15/02/2023. The list of Documents included a loan agreement between the Claimant and the Respondent, a letter dated 31/08/2022 and a list of members and their balance as per 14/12/2022.

5. The Respondent filed further Witness Statement by Pamela Auma Osongi dated 28/08/2023 and a List of Documents filed included the Claimant’s loan/share Statement of Account for the year 2015 upto 2023.

6. The Respondent avers that indeed the Claimant made an Application to withdraw but it was rejected. The Respondent claims that on 30/09/2020, the Claimant took a loan of Kshs 150,000/= payable in installments of 12 months. The Respondent further avers that as of November 2022, the Claimant had a loan of Kshs 78,500/= hence resulting in rejection of his application since his deposits were not supposed to be used to pay that particular loan. The Respondent further claims that the Claimant requested his employer not to pay his salary through the SACCO. The Respondent also avers that as per May, 2023, the Claimant still owes the Respondent loan arrears of Kshs 40,617/=. The Respondent prays that the statement of Claim is dismissed with costs.

7. Being a matter of refund, the parties were instructed to file submissions. The Claimant filed their Submission on 15/09/2023 dated 13/09/2023. As of writing this judgment, the Respondent had not filed their Submissions.

Analysis And Determination. 8. After perusal of the pleadings and submissions, we will consider the following issue.i.Whether the Claimant is entitled to a refund?

9. It is trite law that he who alleges must prove. This principle was upheld in Wambui Ndiritu v Joseph Kiprono. The Respondent has a responsibility according to Section 26 of the Co-operative Societies Act to be a custodian of accounts of members. The Respondent right produced the Statement of Accounts of the Claimant indicating that indeed he owed loan arrears amounting to Kshs 40,617/=. The Respondent further proffered evidence that clearly indicated there existed a loan facility that was advanced to the Claimant amounting to Kshs 150,000/=. The Claimant did not dispute any of the allegations by the Respondent.

10. We, therefore find in favor of the Respondent against the Claimant and order as follows.i.The Statement of Claim is therefore dismissed for lack of merit,ii.The Claimant to bear the costs of the suit.

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 JonahOugo advocate for the Claimant.Sokoro Sacco – No appearanceHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 30. 11. 2023