Ondede v Ken Kazi Sacco Ltd [2022] KECPT 136 (KLR)

Ondede v Ken Kazi Sacco Ltd (Tribunal Case 131 of 2021) [2022] KECPT 136 (KLR) (Civ) (17 February 2022) (Judgment)

Neutral citation: [2022] KECPT 136 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 131 of 2021

J. Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Erick Otieno Ondede

Claimant

and

Ken Kazi Sacco Ltd

Respondent

Judgment

1. The matter for determination is brought Vide a Statement of Claim dated 5/3/21 and filed on even date. The Claimant avers on 7/9/20 he wrote to the Respondent expressing his wish to be refunded his shares/deposit. He has severally pursued the Respondent but it all fell on deaf ears.The Claimant states his shares were at Kshs. 138,543. 00. The Claimant thus prays for;a)The said sum of Kshs. 138,543. 00 being shares contributions;b)Costs of the suit and interest until payment in full;c)Any other relief so deemed appropriate by this Honourable Tribunal.

2. The Respondent filed a Statement of Admission dated 25/3/21 on even date. The Respondent admitted they owed the Claimant a sum of Kshs. 93, 430. 00. The Respondent reiterated they wish to pay an equal monthly sum of Ksh. 10,000/- on or before 30/12/21 and each succeeding month.The Tribunal on 28/7/21 directed for the unadmitted sum to go for trial.On 13/9/21 judgment was entered for the admitted sum of Kshs. 93,430/- and parties directed to file written submissions on disputed amount of Kshs. 45,113/-. The Respondent was further to file Supporting of Affidavit within 14 days.On 10/11/21 when the matter was mentioned both parties were absent however we note the Claimant filed their Original Documents as evidence in the case to which he filed various years from 2012, 2016, and 2017. a)Payslip from the year 2017 – 2020;b)The withdrawal letter

3. The Respondent filed their written submissions dated 21/10/21 on 28/10/21. The Respondent further filed Supporting of Affidavit showing the Respondent had a balance of Kshs. 93,430/- as his shares. Claimant did not file any written submissions.

4. The issue for determination thus is ;

Issue OneWhether the Claimant is entitled to refund by the Respondent and how much is the refund?We need not say more or list documents produced by Claimant to support his claim. He did indeed in his list of documents dated 5/3/21 give the following documents;a)Withdrawal letter dated 7th September, 2020;b)Claimant’s pay slip;c)Statement from the Sacco – KenKaz.

The Supporting of Affidavit showed he had a balance of Ksh. 82,278. 70 as at 30/4/2016. The Respondent on the other hand produced a Supporting of Affidavit dated 31/10/21 showing the balance of the account of Claimant is Ksh. 93,430. 00. The Respondent want us to determine whether they can pay the amount via instalment.The Tribunal cannot be dragged into the arrangement of payment and its only concern for now is determination of the suit.Parties would have to agree by themselves the mode of payment of the decretal sum of Ksh. 93,430/-.The disputed amount of Ksh. 45,113/ has not been produced as owing by the Claimant. 5. We find the Claimant have proved its case on a balance of probability and we find as follows;-Judgment is entered in favour of Claimant against Respondent for Ksh. 93,430. 00 as admitted plus costs and interest from date of filing suit.

RULING, PREPARED, READ AND DELIVERED BY VIRTUALLY THIS 17TH DAY OF FEBRUARY,2022 WITH WHOM, P. GICHUKI AND B. AKUSALA AGREE.HON. MJENI MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 2.2022P. GICHUKI MEMBER SIGNED 17. 2.2022B. AKUSALA MEMBER SIGNED 17. 2.2022In the presence ofEric Otieno - presentKen Kaz Sacco – No AppearanceSignedHON. MJENI MWATSAMADEPUTY CHAIRPERSON