Osore v Invest and Grow Sacco [2023] KECPT 449 (KLR)

Osore v Invest and Grow Sacco (Tribunal Case 349 (E152) of 2021) [2023] KECPT 449 (KLR) (27 April 2023) (Ruling)

Neutral citation: [2023] KECPT 449 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 349 (E152) of 2021

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

April 27, 2023

Between

Rosebellah Osore

Claimant

and

Invest and Grow Sacco

Respondent

Ruling

1. Matter for determination is application dated 12. 08. 2021 seeking the following orders:a.Spent.b.That pending the hearing of this application interparties a temporary order of injunction be issued restraining the defendant and/or its agent from deducting the sum of Kshs 34,625/= and/or any lesser or greater sum from the plaintiff’s salary from the Teachers Service Commission as purported loan recovery as well as deducting the shares from the plaintiff due to the defendant from the plaintiff.c.That pending the hearing and final determination of this application and thereafter the main suit the defendant and/or its agent be restrained from deducting the sum of Kshs 34,625/= and/or any lesser or greater sum from the plaintiff’s salary from the Teachers Service Commission as purported loan recovery as well as deducting the shares from the plaintiff due to the defendant from the plaintiff.d.Costs of this application be provided for.

Claimant’s 1st Loan Statement 2. That on December 21, 2015, the Claimant applied for a loan of Kshs 1,300,000/= from the Respondent of which she was granted Kshs1,281,000/= on January 5, 2016 to be repaid with interest monthly deduction of Kshs 36,495/= by way of a check off system from the Claimants employer Teacher Service Commission. (TSC)

3. That between May 2016 and November 2018 the Claimant state that she underpaid her instalment because her employer stopped her special duty allowance.

4. The Claimant state that despite the stoppage of her special duty allowance she increased her monthly payment to Kshs 32,000/= from November 2018.

5. Further, she stated at paragraph ten (10) of her Plaint as follows:“The Plaintiff states that she nevertheless instructed the defendant in writing to offset the alleged outstanding loan interest from her shares with the Defendant then outstanding at Kshs 573,460/= as at June 2021. ”

6. Accordingly, the Claimant stated that as at June 30, 2021 she had repaid the loan outstanding and the accumulated interest.

7. It is the Claimant’s case that she demanded from the Respondent her accurate loan repayment statement which has not been supplied to her.

Claimant’s 2nd Loan Statement 8. The Claimant state that on July 8, 2021 she applied for another loan of Kshs 2,600,000/= from the Respondent which was approved and granted on July 12, 2021 to be repaid with interest within a period of 84 months at a monthly rate of deductions of Kshs 34,625/=.

9. The Claimant states that surprisingly her July 2021 payslip showed that she had a loan balance of Kshs 4,198,610/= and that a sum of Kshs 34,625/= had been deducted by her employer and remitted to the respondent.

10. That upon noticing the abnormally, the Claimant applied to cancel the second loan of Kshs 2,600,000/= which was effected by the Respondent.

Respondent’s Statement 11. The Respondent states that the Claimant applied for a loan of Kshs 1,300,000/= on December 21, 2015 and she was granted Kshs 1,281,000/=.

12. That because of the Claimant’s underpayment of the monthly deductions for the 1st loan the period was stretched for a period of over 66 months which was eventually cleared on July 15, 2021.

13. The Respondent further state that the Claimant applied for a second loan of Kshs 2,600,000/= which was approved and granted. This loan was to be repaid within a period of 84 months at a monthly deductions of Kshs34,625/=.

14. The Respondent state that upon crediting the Claimant’s Account with the approved loan of Kshs 2,600,000/=, the Sacco advised Teacher Service Commission (the employer of the Claimant) to commence monthly deductions of Kshs 34,625/= from the Claimant’s salary.

15. The Respondent state that the Claimant finished the payment of the first loan. This is stated by one Joseph Churchill Sagalla at paragraph nine(9) of the Respondent’s Replying Affidavit that:-“The Claimant has no outstanding loan with the Respondent and there are no deductions from her salary on account of the Respondent.”

16. Regarding the second loan, the Respondent state that the Claimant cancelled it and the transaction was revised and money deducted was refunded to the Claimant.This is exemplified in the witness statement by Churchill Sagala at paragraph 9 that:“Following her cancellation, the Claimant’s employer was conducted to stop further deductions and the Kshs 34,625/= already deducted for the month of July 2021 was refunded to the claimant on August 5, 2021. ”

17. In response to the statement above, the claimant stated at paragraph seven (7) of her supplementary affidavit that:“I have not been refunded any monies allegedly erroneously deducted and that I am a stranger to the pay slip annexed because I have never at any time given my password to the Respondent.”

18. At paragraph 17 of the Statement of Defence, the Respondent state that Loan Account Statements are availed to her members on request. This is rebutted by the Claimant’s Statement on paragraph 17 of her plaint that she was not supplied with an accurate Loan Repayment Statement by the Respondent despite her demand.

19. Because of the back and forth conflicts statements, we order as follows:a.That the Application dated August 12, 2021 is allowed in terms of prayer one(1).b.We direct that the Respondent to file the Claimant’s loan Account Statement with clear rate of interest charged for the 66 months.c.Further, the Respondent is directed to file evidentiary documents on the refund of the Kshs 34,625/= to the Claimant which was deducted in the month of July 2021 30 days from April 27, 2023. d.Pre-trial directions on July 10, 2023.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL , 2023. Hon. Beatrice Kimemia Chairperson Signed 27. 4.2023Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023Hon. Beatrice Sawe Member Signed 27. 4.2023Hon. Fridah Lotuiya Member Signed 27. 4.2023Hon. Philip Gichuki Member Signed 27. 4.2023Hon. Michael Chesikaw Member Signed 27. 4.2023Hon. Paul Aol Member Signed 27. 4.2023Tribunal Clerk Jemimah/JonahRuling delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 27. 4.2023