Seifu Matsabe Omutimba v Sukari Sacco Society Limited [2021] KECPT 662 (KLR)

Seifu Matsabe Omutimba v Sukari Sacco Society Limited (Tribunal Case 738 of 2019) [2021] KECPT 662 (KLR) (2 September 2021) (Judgment)

Seifu Matsabe Omutimba v Sukari Sacco Society Limited [2021] eKLR

Neutral citation: [2021] KECPT 662 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 738 of 2019

BM Kimemia, Chair, J. Mwatsama, Vice Chair, Gitonga Kamiti & B. Akusala, Members

September 2, 2021

Between

Seifu Matsabe Omutimba

Claimant

and

Sukari Sacco Society Limited

Respondent

Judgment

1. The claim for determination is dated 6/12/2019 filed on 6/12/19. The same seeks for:1. Immediate release of Kshs.503,000/-(Five hundred and three thousand)being the amount that the Respondent failed to remit to Barclays Bank on behalf of the claimant.2. Interest on the (a) above from August 2018 until repayment in full.3. Damages for breach of agreement.4. Costs of this suit.5. Any other relief that the Tribunal may find fit and just to grant the claimant.

2. The claimant filed a Witness Statement filed on 6/12/19 which he relied on during trial. The claimant claims he was working for Mumias Sugar Company in the Human Resource Department. By virtue of his employment, he is a member of the Sukari Sacco Society Limited, the Respondent herein.The claimant avers in December 2016 he applied for a loan of Ksh. 860,000/= which he bought out his loan with Barclays Bank amounting to Ksh.590,606. 80/=. The Respondent was to pay the claimant’s outstanding loan and deposit the balance in his FOSA account with a buy out Commission of Kshs. 59,060. 68/= and Barclays Bank excise duty of Kshs. 5,906. 07/=.

3. That contrary to expectation, the Respondent deducted Ksh. 59,060. 68/= and Kshs. 5,906. 07/= excise duty and only deposited a total of Kshs.356,000/= and that balance was remitted to Barclays Bank.The Respondent invited the claimant’s employer to recover the entire loan of Kshs. 860,000/= from the claimant’s salary at the rate of Kshs. 17,900 from August,2018. Due to the Respondent’s actions, the claimant has suffered and continues to suffer, unable to pay his children’s fees.

4. The Respondent entered Appearance and filed a statement of Defence dated 10/2/20 on 13/2/20 denying the claim and stated if indeed the claimant’s employer was deducting the monthly deposits from the claimant’s salary, the same was never remitted to the Respondent.That the Respondent avers that the claimant’s employer, Mumias Sugar Company went to into financial limbo and was unable to make membership remittances and loan repayment deposits from the claimant’s salary to Respondent making it impossible for the claimant to meet his obligations.The withholding of Kshs. 503,000/= was due to the claimant being demonstrated through his employer the inability to service the loan and make monthly contributions which led to the claimant’s breach of loan terms and claimant should take the issue up with his employer.That if indeed the claimant’s employer had or continues to deduct Kshs.17,900/= per month from the claimant’s salary the same was not being remitted to the Respondent and the claimant out to deal with his employer.The Witness Statement of the Respondent further states in paragraph 12 that if the claimant’s employer, Mumias Sugar Company Limited stops loan deductions, the FOSA balance can be used to offset the claimant’s loan balance of Kshs. 634,012. 08 leaving an outstanding debt of Kshs.130,065. 79/= which will be secured within his current member deposits of Kshs.365,708. 84/=

5. We take note of a letter dated 26/9/19 (Marked 21) used for an Application which has the effect shows the claimant is entitled to (Kshs. 365,708. 84- Kshs.130,065. 79 )= Kshs.235,643. 05. The matter proceeded for hearing on 9/12/20 and the claimant presented its case with no representation by the Respondent.We also have looked at the claimant’s payslips and taken note deductions of Kshs. 17,900/= were being made from his payslips by his employer. The employer was there to forward this to the Respondent’s herein.It is therefore not known if indeed the claimant’s employer forwarded the deductions or not.

6. Having analyzed the case before us looking into all pleadings and documents before us, we find the claimant entitled to the full Kshs. 503,000. 00/= since the Respondent admitted having withheld the same in their Statement of Defence.We are inclined to agree with the claimant despite the Respondent statement of defence raising weighty issues which they failed to ascertain as produce evidence during trial, that is they never received the deductions from the claimant’s employer.N/B: As at the date of writing the judgment despite reminders by the Registry to the Respondent to file their submissions, they had not been filed.To this end:1. We order for the Release of Kshs. 503,000/= to the claimant.2. Costs plus interest on above from date of filing suit.3. Prayer for damages fails.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 2ND DAY OF SEPTEMBER, 2021. HON. B. KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONMR. GITONGA KAMITIMEMBERMR. BONIFACE AKUSALAMEMBER