Kipkemboi v Metropolitan Teachers Ltd (Civil Case 507 of 2021) [2023] KECPT 759 (KLR) (31 August 2023) (Judgment)
Neutral citation:
[2023] KECPT 759 (KLR)
Republic of Kenya
Civil Case 507 of 2021
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 31, 2023
Between
Jacob Kipkemboi
Claimant
and
Metropolitan Teachers Ltd
Respondent
Judgment
1.The matter before the Tribunal for determination is brought via Statement of Claim dated 02/11/2021 by the Claimant against the Respondent for the amount of Kshs 87,008/=.The Claimant prays for judgment against the Respondent for;a.Recovery of Kshs 87,008/=b.Costs of this suit
2.The Claimant avers that he was a member of the Respondent but later withdrew and requested for a refund of his savings through a letter dated 18/05/2021. He persuaded the Respondent to pay him shares since the time he left as a member but all fell on deaf ears.
Respondent’s Case
3.The Respondent states that it has never received the Claimant’s Notice of Withdrawal and that if any Notice of Withdrawal of membership was received , a member is required to wait 60 calendar days after making a refund request as per the By-laws of the Sacco.
4.Respondent further avers that the Claimant has outstanding loan arrears and liabilities which he owes the Sacco and until the said loan arrears and liabilities are cleared before the scheduled date for the refund , the Plaintiff will not be refunded and the loan arrears and liabilities will continue to accrue interest.
5.However , the Respondent avers that the claimant’s refund was scheduled for payment on 23/11/2023 as per Annual General Meeting Resolutions of 2019, which according to the Respondent are binding to the Claimant.
6.The Respondent filed a List of Witnesses dated 15/11/2021.The Respondent also filed a List of Documents dated 15/11/2021, which included;a.Claimant’s member statementb.Sacco By-lawsc.2019 Annual General Meeting Resolutions
7.The matter being one of refunds, parties were directed to file written submissions.The Claimant did not file his written submissions as at the date of writing this judgment.The Respondent filed their written submissions on 06/12/2022.
8.Having considered the pleadings and written submissions provided, the issue for determination is;
Issue One
i) Whether The Claimant Is Entitled To The Refund?
9.It is not disputed by the respondent that the Claimant was their member and held savings and contributions amounting to Kshs. 87, 008/=.
10.The only reason the Respondent are not refunding the money is because of the Annual General Meeting Resolutions of 2019 requiring the refund to be rescheduledThe Claimant’s refund was consequently scheduled for 23/11/2023.
11.The Cooperative Society Act Cap 490 read together with the Cooperative Societies Rules of 2004 requires that members are entitled to refunds upon expulsion or withdrawal of membership.
12.The Respondent produced the Claimant’s Statement of Accounts clearly indicated that the claimant has no liabilities preventing payment of the refunds.
13.The liquidity issues and challenges are not reason enough to deny the Claimant his refund.
Determination
14.The Claimant has proved their case and thus we thus find that in favour of the Claimant against the Respondent for Kshs 87, 008/= plus costs and interest.
JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31.8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31.8.2023HON. BEATRICE SAWE MEMBER SIGNED 31.8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31.8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31.8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31.8.2023HON. PAUL AOL MEMBER SIGNED 31.8.2023TRIBUNAL CLERK JEMIMAHKorir advocate for the RespondentJacob Mutei - No appearanceKorir advocate – We pray for 30 days stay of execution.Tribunal orders :30 days stay of execution granted to the Respondent.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31.8.2023