Omondi v Ufundi Savings & Credit Cooperative Society Limited [2024] KECPT 1505 (KLR)

Omondi v Ufundi Savings & Credit Cooperative Society Limited (Tribunal Case 735/E923 of 2023) [2024] KECPT 1505 (KLR) (26 September 2024) (Judgment)

Neutral citation: [2024] KECPT 1505 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 735/E923 of 2023

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

September 26, 2024

Between

Paul Omondi

Claimant

and

Ufundi Savings & Credit Cooperative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 1st September, 2023. In the Statement of Claim, the Claimant claims that he was a member of of the Respondent, member number P/No. 1990026478. The Claimant claims that that he withdrew from the membership of the Respondent on 2nd September 2022. He received a contribution statement dated 27th October 2022, which showed that he had a total contribution of Ksh. 345,411/-. However, he claims that he is yet to receive the refund. The Claimant is aggrieved and prays for:a.An order compelling the Respondent to remit the sum of Kshs. 345,411/= to the claimant.b.Costs of this suit.c.Damages for breach of contractd.Interest on the above at current commercial rates from 2nd September 2022 to date.The Claimant filed a Witness Statement and a List of Documents in support of her claim.

2. The Respondent did not enter an appearance or file any response to the Claim. The Claimant requested for judgement on 4th December, 2023 and an interlocutory judgment was delivered on 24th January, 2024 in favour of the Claimant as against the Respondent. The matter was set for Formal Proof on the 20th of February 2024.

3. During the Formal Proof hearing, the Claimant adopted his Witness Statement and produced his documents. He requested the court to order the Respondent to refund his Ksh.345,411/-.

Analysis 4. The question before this Tribunal is whether the Claimant is entitled to the relief sought. The Claimant’s claim is for a refund of his deposits after he ceased to be a member of the Respondent.

5. The Claimant testified in formal proof, and we ask ourselves, what is Formal proof?

6. In the case of Samson S. Maitai & Ano….Vs…African Safari Club Ltd & Ano. (2010) eKLR, the Court held that:-“…..I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.

7. Therefore, even in cases where the other party does not enter appearance and does not file a Statement of Defence, the Claimant still has the burden of adducing evidence to prove his case. The burden of proof does not leave the Claimant until that burden is discharged. The purpose of Formal Proof in this case, was for the Claimant to prove his case, to wit, that he is entited to a refund of his deposits.

8. The Claimant has produced documents that show that indeed the Sacco acknowledged the withdrawal notice by the Claimant. In the letter, dated 27th October 2022, the Respondents acknowledged that the Claimant has a cumulative deposits of Ksh. 345,411/=.

9. The Claimant’s evidence is uncontroverted. There is an Affidavit of Service on record that shows that the Respondent was duly served. The Respondent received the pleadings and the documents, that contained their letter to the Respondent dated 27th October 2022. We are inclined to believe the Claimant and the documents that he filed in support of his claim. Membership to a cooperative society is voluntary and when a member decides to exit, he should get his due according to the by-laws of the cooperative.

10. The Upshot is that we find merit in the Claimant’s Claim, and make the following ordersa.An immediate refund of Ksh. 345,411/-b.Prayer (c) was not proved, and hence fails.c.The Claimant is awarded costs of this claim together with interest from the time of filing suit till payment in full.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. Hon. B. Kimemia Chairperson Signed 26. 9.2024Hon. J. Mwatsama Deputy Chairperson Signed 26. 9.2024Hon. Beatrice Sawe Member Signed 26. 9.2024Hon. Fridah Lotuiya Member Signed 26. 9.2024Hon. Philip Gichuki Member Signed 26. 9.2024Hon. Michael Chesikaw Member Signed 26. 9.2024Hon. Paul Aol Member Signed 26. 9.2024Tribunal Clerk MutaiMuthoni Waweru advocate for the Claimant – PresentUfundi Savings - No appearanceHon. J. Mwatsama Deputy Chairperson Signed 26. 9.2024