Oyaro v Metropolitan National Sacco Soc. Ltd. [2023] KECPT 763 (KLR)

Oyaro v Metropolitan National Sacco Soc. Ltd. (Tribunal Case 935/ E1020 of 2022) [2023] KECPT 763 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 763 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 935/ E1020 of 2022

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

September 21, 2023

Between

Tawara Adrian Oyaro

Claimant

and

Metropolitan National Sacco Soc. Ltd.

Respondent

Ruling

1. The Claim for determination is dated 06/12/2022 filed on 06/12/2022. The Claimant avers that 21/03/2021 he withdrew his membership from the Respondent and refund of his contribution of Kshs. 133,175. 00/=. The Claimant filed a Witness Statement dated 06/12/2022 together with a Verifying Affidavit and List of Documents dated 06/12/2022 and filed on the same date. The Claimant’s List of Documents included: -i.Withdrawal Letter dated 21/03. 2021ii.A Copy of Statement of Accounts.

2. The Respondent filed a Statement of Defense dated 11/01/2023 and filed on 10/01/2023. The Respondent denies the Claim of illegality and malice put forward by the Claimant. Further, the Respondent denies receiving the withdrawal letter arguing that the same is not stamped as received. The Respondent avers that as per their 2022 Annual General Meeting Resolutions, by the General Assembly, members of the Respondent agreed and resolved stop all further refunds due to liquidity challenges faced by the Respondent.

3. The Respondent filed a Witness Statement dated 11/01/2023 and filed on 10/01/2023 included the Claimant’s members statement.

4. The matter being one of refunds, the parties were directed to file Written Submissions to dispense of with the main suit. The Claimant filed their Written Submissions on 02/08/2023 while the Respondents file theirs on 04/08/2023.

5. Having considered the pleadings and Written Submissions by both parties, the Issue for determination is one;Whether the Claimant is entitled to their refund.

6. It is not disputed by the Respondent that the Claimant was their member and held savings and contributions amounting to Kshs. 133,175/=. The Respondent’s only challenge is that of liquidity and hence its inability to pay the refund.

7. It is trite law that he who alleges must prove. This was held in Wambui Ndiritu v Joseph Kiprono and Another [2005] I EA 334. The Cooperative Societies Act requires that joining or leaving a cooperative society to be on a voluntary basis. The Claimant joined the Respondent voluntarily and is desirous of leaving the Respondent since he will be retiring. He followed the laid down procedure. This is confirmed by a letter filed by the Claimant from the Respondent position that they have had challenges with member withdrawal refunds. This letter indeed confirms that the Respondent was aware of the Claimant decision of withdrawing from the Respondent.

8. The Respondent has however been unable to show through any documentation that indeed they are experiencing any financial difficulties when it comes to the payment of refunds. Further, stopping any refunds to the members will be contravention with the Cooperative Societies Act read together with the Cooperative Societies Rules of 2004 that require that members are entitled to refunds upon expulsion or withdrawal of membership.

9. From the foregoing, it is the Tribunal’s view that the Claimant is indeed entitled to their refund.

Determination. 10. In the upshot, on a balance of probabilities, we thus find in favour of the Claimant against the Respondent for Kshs. 133,175/= plus cost and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHTwara Adrian Oyaro presentKorir Advocate for the RespondentJudgment as delivered on 21. 9.2023. Korir advocate- We pray for 30 days stay of execution.Twara Adriano- No objectionTribunal Order:30 days stay of execution granted to the Respondent.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023