Machami v Deli Savings & Credit Cooperative Society Ltd (Tribunal Case 416/E204 of 2021) [2025] KECPT 134 (KLR) (30 January 2025) (Ruling)
Neutral citation:
[2025] KECPT 134 (KLR)
Republic of Kenya
Tribunal Case 416/E204 of 2021
Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
January 30, 2025
Between
Maria Njoki Machami
Claimant
and
Deli Savings & Credit Cooperative Society Ltd
Respondent
Ruling
1.The Application for our consideration is the Claimants Notice of Motion dated 22/8/2023 made under Order 22 Rule 35 Rule 35 (b) order 51 Rule 1 of the Civil Procedure Rules 2010 and Rule 6 of the Co-operation Tribunal (Practice and Procedure) Rule 2009 seeking orders to:-a.Order the attendance of Winston Mbogo (Vice Chairperson), Martin Okumu (Treasure) and James Muthungi (Secretary) being officials of Deli SACCO to be orally examined as to whether the Respondent herein has any and what assets or means of satisfying the decree herein and to produce any cooks or documents and/or documents relevant in ascertaining the same.b.Order that the said officials Winston Mbogo (Vice Chairperson), Martin Okumu (Treasurer) and James Muthungu (Secretary) do satisfy the decree herein personally and jointly.c.Make any other interlocutory orders as it may deem just and convenientd.Cost to be provided.
2.That in the same Notice of Motion, the Claimant cited 11 grounds to justify why the orders need to be granted. The same grounds are detailed in Supporting Affidavit dated 22/8/2023 sworn by Maria Njoki Machami and filed on 6/92023.
3.However, the genesis of this application was initiated by a Statement of Claim dated 15/9/2021 which was filed by the Claimant on 5/10/2021 and sought for a refund of Kshs 203,943/= which she had saved with the Respondent while she was employed by Nanjala Ltd.
4.According to the Claimant, it was mandatory for every employee employed by Nanjala Ltd. to join the Respondent that upon withdrawal the Respondent would limit a member contribution within 60 days from the close of withdrawal.
5.The support of her claim, the Claimant filed on 5/10/2021 Verifying Affidavit by the Claimant, a list of witnesses, witness statement sworn by her and a List of Documents all dated 15/9/2021.
6.When the Respondents failed to either appearance despite being served as per the return of Affidavit of Service dated 28/10/2021, the Claimant filed on 28/10/2021 a request for judgement
7.On 31/11/2021 the Tribunal considered the request for judgement and entered judgement as follows: -
8.It is in record that the Claimant engaged the services of M/S Mwose & Co. Auctioneers to look for assets of the Respondent and attach.
9.After following to get any of the assets of the Respondents the auctioneers returned the warrants of attachment and sale unexecuted to the Tribunal.
10.Finally, in a quest to establish who the officials of the SACCO were, the Advocate of the Claimant wrote to the Commissioner for Co-operative responded vide a letter dated 9th August, 2023 and stated that: -
Analysis
12.Surprisingly on 4th April, 2024, the Respondent filed a response to the statement of claim and denied having received notices and disowned the Claimant as one of their members. This raises a question of fact which needs to be tested through hearing and cross examination.
13.We take cognizance of the averment made by the Respondent under paragraph 7 of the Respondent’s witness statement that: -
14.The Response to the statement of claim together with the Respondents witness statement dated 4th April, 2024 come too late after the suit has been determined.
15.Now that the Respondents have been served with the application dated 22nd August, 2023 and the fact that we have no record to show that the Respondents attended the hearing on 14/10/2024. It is our considered opinion that the Respondent should have their day in the Tribunal to state their side of this suit.
16.Having read and examined the evidence on record and having considered the Claimant’s Notice of Motion application dated 22/8/2023 we make a ruling as follows”
Ordersa.Order the attendance of Winston Mbogo (Vice Chairperson), Martin Okumu (Treasure) and James Muthungi (Secretary) being officials of Deli SACCO to be orally examined as to whether the Respondent herein has any and what assets or means of satisfying the decree herein and to produce any cooks or documents and/or documents relevant in ascertaining the same. Is merited and allowed.b.Order that the said officials Winston Mbogo (Vice Chairperson), Martin Okumu (Treasurer) and James Muthungu (Secretary) do satisfy the decree herein personally and jointly. Not merited and disallowed.c.Make any other interlocutory orders as it may deem just and convenient - Not applicable.d.Cost to be provided.- Cost in the cause.It is so ordered.File closed.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF JANUARY, 2025.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30.1.2025HON. BEATRICE SAWE MEMBER SIGNED 30.1.2025HON. FRIDAH LOTUIYA MEMBER SIGNED 30.1.2025HON. PHILIP GICHUKI MEMBER SIGNED 30.1.2025HON. MICHAEL CHESIKAW MEMBER SIGNED 30.1.2025HON. PAUL AOL MEMBER SIGNED 30.1.2025Tribunal Clerk MutaiEvans Oduor advocate for Decree Holder.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30.1.2025