Rwenyo v Radar Guards Cooperative Savings and Credit Society Limited [2023] KECPT 1077 (KLR)

Rwenyo v Radar Guards Cooperative Savings and Credit Society Limited (Tribunal Case 459 of 2020) [2023] KECPT 1077 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1077 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 459 of 2020

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

November 30, 2023

Between

John Obiri Rwenyo

Claimant

and

Radar Guards Cooperative Savings and Credit Society Limited

Respondent

Judgment

1. The matter for determination is Statement of Claim dated 17. 11. 2020 filed on 19. 11. 2020. The Claimant avers that he was a member of the Respondent and had saved a sum of Kshs. 57,000/=. Claimant avers he lodged his Notice of Withdrawal from Respondent Sacco on 5. 2.2019. The Claimant claims the Respondent has failed to refund the Claimant’s contribution.The Claimant prays for:a.Refund of shares in the sum of Kshs. 57,000/=b.Interest in (a) above at court rate with effect from 5th February 2019c.Cost of this suit.

2. The Claimant filed his List of Documents dated 17. 11. 2020 which included;a.Copy of Claimant’s payslipb.Copy of Resignation Notice dated 5th February 2019c.Copy of Share Certificate No. 359. d.Copies of member Statemente.Copy of letter dated 13th June 2020f.Copy of Demand Notice dated 13th August 2020.

3. The Respondent filed a Statement of Defence dated 23. 2.2021. Thus denied the contents of the claim and sought for the suit to be dismissed.The Respondent filed their List of Documents dated 10. 8.2021 filed on 11. 8.2021 which included:a.Claimant’s letter dated 4th February 2019. b.Claimant’s letter dated 27th April 2019. c.Claimant’s letter dated 13th February 2020. d.Claimant’s Statement of Accounte.Bank Statement

4. Matter came for hearing on 14. 8.2023. the claimant John Obiri Rwenyo testified as CW1. He adopted his witness statement dated 19. 11. 2020 as his Evidence -in- Chief.He stated his claim was for Kshs. 57,000/=.He denied having overdrawn his account.

5. Claimant further avers before the loan was disbursed the Respondent made 3 monthly deductions of Kshs. 26,628/= cumulatively.The loan of Kshs. 100,000/= was disbursed in form of 3 cheques:Kshs. 35,000/=, Kshs. 40,000/= and Kshs. 25,000/= respectively.Claimant claims he repaid the loan paying Kshs. 5,500/= per month and he completed the loan repayment in June 2020. Upon ceasing being a member of Respondent, Claimant got Kshs. 30,000/= through Mpesa.Later he Kshs. 20,000/= via cheque and Kshs. 10,000/= Mpesa.His claim before Sacco is Kshs. 57,000/=.On cross examination he confirmed in 2018 he was servicing a loan of Kshs. 43,738. 30. In 2019 he had loan of Kshs. 100,000/= which he indicated he had paid by June 2020. He denied owing the Sacco any money.

6. The Respondent called one witness Job Onsongo Osero who testified as RW1. He confirmed he was Secretary to Rada Guards Sacco.He adopted his Witness Statement dated 10. 8.2021 filed on 11. 8.2021 as his Evidence in Chief.He averred the Claimant owes Respondent Kshs. 21,994. 19.

7. On cross examination RW1confimed having deducted Kshs. 26,000/= before disbursement of loan.Parties were to file written submissions with Claimant filing written submissions dated 9. 10. 2023. Having considered the pleadings, evidence and written submissions by parties, the issue for determination is:Issue OneWhether Claimant repaid all his loans?Issue TwoWhether the Claimant is entitled to a refund and if he is how much?

Issue One Whether Claimant Repaid All His Loans? 8. The Claimant’s documents dated 17. 11. 2020 show Claimant had Kshs. 77,000/= as at December 2018 and was repaying a loan from the Claimant member statement.The Respondent’s documents dated 10. 8.2021 had Claimant’s Statement of Account. It corresponds the Claimant’s documents that as of December 2018 Claimant had Kshs. 77,000/=In Respondent’s documents the Claimant Statement as of 2020 show he had a balance of Kshs. 80,000/= and balance of the development loan was Kshs. 96,214. 30/=.This clearly shows the claimant was yet to clear his loan repayment of Kshs. 96,214. 30 against his savings of Kshs. 80,000/=.

Issue Two Whether The Claimant Is Entitled To A Refund And If He Is How Much?The loan balance is thus Kshs.96,214. 30. This is not denial against savings of Kshs.80,000/= as at December 2020. 9. Court is further not in doubt of RW1 confirmed having deducted Kshs. 26,628/= cumulatively for 3 months before the loan of Kshs. 100,000/= was disbursed. This amount however is not shown in the Claimant’s Statement of Account which could only mean it was not factored in the repayment.The reason for the deduction of Kshs. 26,628/= is not given.As such we find the Respondent owes the Claimant and ought to have credited his account with Kshs. 26,628/=.Kshs. 80,000+26,628=Kshs. 106,628/= is the total savings the claimant had with the Respondent.The deduction of the loan repayment being made would make the Claimant refund to stand at Kshs. 106,628/=- Kshs. 96,214. 30=Kshs. 10,413. 70/=.

UpshotJugdgment is entered in favour of Claimant against Respondent for Kshs.10,413. 70/= plus cost and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023TRIBUNAL CLERK JONAHK.A Nyachoti advocate for the claimantJ. Okerosi Ochako advocate for Respondent – no appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023