Sitanda v Emerging Opportunities Sacco Limited [2025] KECPT 212 (KLR)

Sitanda v Emerging Opportunities Sacco Limited (Tribunal Case 250/E372 of 2023) [2025] KECPT 212 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KECPT 212 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 250/E372 of 2023

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

March 27, 2025

Between

Joseph Wabomba Sitanda

Claimant

and

Emerging Opportunities Sacco Limited

Respondent

Judgment

Background And Process 1. The facts giving rise to this suit are not disputed or defended by the respondent. In a statement of claim dated 28/04/2023 the claimant stated that he was a member of the respondent Sacco from January 2015 until August 2021. During the period of his membership, the claimant averred that he used to make a contribution of Ksh.1000 every month towards his savings.

2. On 17/08/2021, the claimant filled a membership withdrawal from and gave sixty (60) days notice to the respondent to refund his savings and share deposits. The respondent acknowledged receipt of the withdrawal from and inscribed on top of it “End of October check with Sacco”

3. When the respondent failed to honour the refund implied promise, the claimant enlisted Gakoi Maina & Co. advocates to write a demand letter which was done on 27/03/2023

4. Finally, the claimant filed with the tribunal a statement of claim on 05/05/2023 which was dated 28/04/2023 and sought for the following prayers;a.A declaration that the claimant made due contributions and held shares with the respondent during his membership with the respondent and consequently an order compelling the Respondent to furnish this Honourable tribunal with a full and complete statement of claimant’s deductions and subsequently the shares due to him.b.An order that the respondent pays the claimant his savings contribution of Ksh. 72,000c.The shares held by the claimant in the respondent Sacco be liquidated and paid to the claimantd.Payment of dividends accrued from 2015 to 2021. e.Interest on (b) (c ) and (d) above.f.Costs of the claim andg.Any other or further relief that this tribunal may deem fit to grant.

5. Summons to enter appearance dated 05/05/2023 was prepared by the tribunal to be served upon the respondent. This was promptly served together with the statement of claim and other annextures and the affidavit of service dated 02/07/2024 was filed by a process server in the tribunal

6. Vide a request for judgement application dated 12/06/2024 filed by the claimant the tribunal entered judgement as follows;1. Request for judgement dated 12/06/2024 and the affidavit of service of Maxinah Anjili Musungu dated 02/07/2024 is considered2. In absence of a statement of defence by the respondent interlocutory judgement is entered in favour of the claimant against the respondent3. Summary judgement is entered in favour of the claimant against the respondent for ksh.72,000= plus interest4. Formal proof for prayers a, c and d on 11/03/2025

Analysis And The Law 7. Order 5 of the civil proceedings Rules provides for service of summons and pleadings upon a party to the suit and once served, the party served must enter appearance within 14 days and file a defence. In default to enter appearance or file a statement of defence, the tribunal made an assumption that the respondents are not interested to defend the suit or they have np defence, it is on the basis of this, that the tribunal entered into an interlocutory judgement.

8. In the instant case, the interlocutory judgement entered in favour of the Claimant against the Respondent of the liability under order 10 Rule (4) and (6) of the civil procedure Rules 2010 this being a liquidated demand. For avoidance of doubt, a liquidated demand is a debt or specific sum of money due and payable in defined and ascertained sums like the sum of specific sum of money claimed by the claimant.

9. Having settled prayer (b) of the statement of claim the tribunal ordered that prayer a, b and d be dispended with by way of formal pivot hearing on 11/03/2025

10. During the formal pivot hearing, the claimant told the tribunal that the Respondent declined to give his statement of account that would have shown his exact amount of savings and share deposits.

11. The three (3) paysheets that the claimant filed for 2018. 2019 and 2021 does not provide a complete picture of how much shares were held by the claimant since 2015

12. According to Halsbury’s Laws of England, the proof refers to evidence which satisfies the contributor as to the truth or falsifies of a fact

13. The tribunal has noted in the three (3) paysheet slips that the claimant contributed different amounts in 2018 and 2019. For 2021, the claimant contributed a flat rate of Ksh.1,000= except November and December which shows that he contributed NIL balance. To help us unmask all these unclarified it is our finding that prayer (a) in the claimant statement of claim is merited it is hereby allowed.

14. Summary judgement in favour of the claim against the Respondent for ksh. 72. 000= plus interest from the date of judgement until payment is made in full.Prayer (a) (c) (d) and (f) fails.Upshoti.Judgement entered in favour of Claimant against Respondent for ksh.72,000/= plus cost and interestii.Prayer c and d fails

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 3.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 3.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 3.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 3.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 3.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 3.2025Tribunal Clerk JonahMideba advocate for the Claimant.No appearance for the Respondent