Otieno v Miliki Savings & Credit Sacco Limited [2024] KECPT 76 (KLR)

Otieno v Miliki Savings & Credit Sacco Limited (Tribunal Case 332 of 2021) [2024] KECPT 76 (KLR) (29 January 2024) (Judgment)

Neutral citation: [2024] KECPT 76 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 332 of 2021

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

January 29, 2024

Between

Charles Okadia Otieno

Claimant

and

Miliki savings & Credit Sacco Limited

Respondent

Judgment

Facts of the case. 1. Around December 2019, the Claimant issued a Notice of Withdrawal of his membership and sought a refund of his savings of Kshs. 998,500/= and shares valued at Kshs. 20,000/=. He was instructed to make the request through filing some forms, which he did and payed the requisite withdrawal fees.The Respondent communicated the receipt of the request and directed the Claimant to expect a refund in 60 days.

2. After more than one year with no refunds, the Claimant on 5th May, 2021 filed this suit seeking the order of this Tribunal to instruct the Respondents to reimburse his contributions.

3. The Respondents in their Statement of Defence did not dispute or deny owing the Claimant, only requested for time to settle the amount given that Covid-19 had slowed down their operations.The Claimant is convinced that more than 4 years have now lapsed and the Respondent is acting in bad faith or in a discriminating manner by refusing or neglecting to reimburse his contributions. The Claimant submits that it is in the interest of justice and fairness that this court answers his prayers by ordering the Respondent to reimburse his contributions.

Reasonable amount of time to settle or do a Refund 4. Courts have always insisted that in considering the reasonable amount of time it should take for one party to refund another party, it is important to look at:i.The peculiar circumstances of the case,ii.How the amount to be refunded originated,iii.The bona fides of the party owed.iv.The financial position of the party owing and that of the party owed.v.The conduct of the party owing and that of the party owed, andvi.The hardship that may result or that has resulted in refunding or failing to refund.

5. In this particular case, it is not in dispute that the Respondent owes the Claimant, and it is also not in dispute that the Respondents are experiencing some financial challenges.

6. The respondents have not furnished this Tribunal with Statement of Accounts to enable us know how much however little they have refunded the claimant given that they have admitted to owing him and as such we take it that in four(4) years they have never demonstrated any good faith to try and refund the Claimant.

7. The Respondents have also not given the Claimant any proposal or schedule of settling the refund, the one they gave lapsed more than two years ago. It is not in the interest of justice for a party to wait forever to access what they are owed as a matter of right.

8. We have considered the peculiar circumstances of this case from how the amount to be refunded originated, to the conduct of the parties, and given that the Respondent has admitted in evidence to owing the Claimant the amount claimed, which is specific and liquidated, we find no reason as not to enter judgment on admission.

Final Orders:i.The Respondent to refund the Claimant his deposits of Kshs. 998,400/=.ii.Prayer b on Refund of Shares for the sum of Kshs. 20,000/= is not successful since they are non-withdrawable shares.iii.Cost and interest from date of filing claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF JANUARY, 2024. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 29. 1.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 1.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 1.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 1.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 1.2024HON. PAUL AOL MEMBER SIGNED 29. 1.2024Tribunal Clerk JemimahNo appearance for RespondentOkadia for Claimant: PresentJudgment delivered.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 29. 1.2024