Menya Services Sacco Limited v Muthuri (Civil Appeal E085 of 2021)  KEHC 412 (KLR) (30 January 2023) (Judgment)
Neutral citation:  KEHC 412 (KLR)
Republic of Kenya
Civil Appeal E085 of 2021
EM Muriithi, J
January 30, 2023
Menya Services Sacco Limited
(An Appeal from the judgment of Hon. B. Kimemia Chairperson, Hon. J. Mwatsama Deputy Chairperson, Mr. P. Gichuki member, in Nairobi Co -operative Tribunal Case No. 397 of 2016 delivered on 3/6/2021)
1.The respondent herein, (the claimant in the tribunal), sued the appellant herein, (the respondent in the tribunal), vide a plaint dated July 14, 2016 seeking refund of a total sum of Ksh 797,595/=, damages for loss of income and profit from the Matatu business, cost plus interest and any other relief the tribunal deemed fit to grant.
2.The crux of the claim was that the respondent, the owner of motor vehicle registration Nos KAS 184 G and KBB 060L toyota matatu plying Meru-Maua route, was a member of the appellant. During the subsistence of the said membership, the respondent made comprehensive savings with the appellant and participated in various development projects in acquisition of various properties. He also held various shares with the appellant which shares have been earning dividends but the appellant has been withholding the same up to date together with his savings and money contributed in purchase of various property after his expulsion from the society.
3.He avers that the appellant maliciously and being actuated by ill will ejected him from the membership of the society and even barred his motor vehicles from picking passengers both at Meru and Maua stage terminus occasioning him loss and damage. He avers that he was barred from engaging in the matatu business by the appellant, despite being a member of the society since 2008 and having complied with its by laws, rules and regulations governing the operations of the said sacco.
4.As a result of the matters aforesaid, he lost income and daily profit which he claims from the appellant at the rate of Ksh 150,000/- per month until payment in full from July 2013 up to date.
5.The appellant denied the claim by its statement of defence dated December 20, 2016.
6.After the conclusion of the trial, the honorable tribunal found that the respondent was entitled to a refund of Ksh 500,000 together with costs and interest at court rates.
7.On appeal, the appellant filed its memorandum of appeal on July 2, 2021 listing 8 grounds as follows:1.The honourable tribunal erred in law and fact in disregarding the by-laws of the appellant which govern the appellant.2.The honourable tribunal erred in law and fact by holding that the respondent was entitled to his savings without considering the fact that the respondent had loans with the appellant and also the respondent had guaranteed other members loans who had since defaulted. The loans were yet to be paid.3.The honourable tribunal erred in law and fact in holding that the respondent owed the appellant Kshs 100,000/- in terms of loan when the appellant had produced enough evidence showing that the respondent owed the appellant outstanding loans of Kshs 231,991/- which had by then escalated (due to interest) to Kshs 289,356.01 in normal and Kshs 649,210.38 in emergency loans.4.The honourable tribunal erred in law and fact in disregarding the weighty evidence raised by the appellant both in their pleadings, their evidence including documentary evidence and in their submissions.5.The honourable tribunal erred in law and fact in holding that the respondent was entitled to a refund of Kshs 500,000/- without any basis on how the figure of Kshs 500,000/- was arrived at and which was against the evidence on record.6.The honourable tribunal erred in law and fact in failing to properly analyse the evidence on record and therefore came to the wrong finding and judgment.7.The entire finding and judgment of the honourable tribunal is contradictory, ambiguous and has not answered all the issues raised by the parties. For instance it is silent on the issue on the persons who the respondent had guaranteed loans and which loans are still unpaid.8.The entire finding and judgment of the honourable tribunal is bad and is against the law and against the evidence on record.
Duty Of The Court
8.This being a first appeal, this court is duty bound to re-evaluate the facts afresh and come to its own independent findings and conclusions. In doing so, the court must bear in mind that it did not have the advantage of seeing the witnesses testify. (See Selle v Associated Motor Boat Co & others  EA 123).
9.PW1 Solomon Muthuri, the respondent herein and a business man in the matatu industry adopted his witness statement dated July 14, 2016 as his evidence in chief together with the list of documents filed therewith. He testified that:
10.On cross examination, he stated that:
11.On re-examination, he said:
12.DW1 Abraham Kareithi, the manager of the appellant testified that:
13.On cross examination, he stated that:
14.On re-examination, he stated that:
15.The appellant urges that it was clear from the by-laws that the respondent was not eligible to either withdraw his membership from the appellant or a refund of his shares/contribution before he had settled all his liabilities. It faults the tribunal for holding that the respondent was entitled to a refund of his shares when he had outstanding liabilities in form of guarantees to other members. It faults the tribunal for holding that the respondent owed it Kshs 100,000 in terms of loans, without giving any explanation how it had arrived at that conclusion, and utterly disregarded the evidence it had tendered, and cites Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others (2014) eKLR. It faults the tribunal for failing to appreciate the dispute before it thus ultimately arriving at an erroneous decision, and pray for the appeal to be allowed with costs. In its view, the tribunal erred in not stating what it had considered before arriving at the sum of Kshs 500,000. It faults the tribunal for failing to determine the loan amount in default by the members that the respondent had guaranteed. It urges that the respondent was not entitled to any refund because after deducting his loan of Ksh 874,972.02 from his total shares contributed of Kshs 631,520, a balance of Ksh 243,452.02 was still outstanding. It accuses the tribunal of failing to determine all issues that had been raised by the parties before pronouncing itself on the matter.
16.The respondent refutes the allegation that he had acted as a guarantor for 5 members who later defaulted in repayment of their loan, and in any case, the appellant would not have allowed him to be a guarantor for the alleged 5 members. He prays for the dismissal of the appeal with costs and urges that parties are bound by their pleadings as was established by the Malawi Court of Appeal in Malawi Railways Ltd v Nyasulu (1998) MWSC 3.
Analysis And Determination
17.From the grounds of appeal as framed, the issues for determination are whether the respondent was entitled to a refund of his savings; and whether the appellant’s pleadings, evidence and submissions were considered.
Refund Of Savings
18.Rule 14 of the by-laws provides for membership withdrawal as follows: “a member may at any time withdraw from the society by giving written notice of 60 days, subject to the member not having pledged his shares as a guarantee for other member’s loans.” The respondent wrote a resignation letter dated November 19, 2013 expressing his intention to withdraw from the sacco. The respondent applied for an emergency loan of Ksh 35,000 on October 19, 2011. He also applied for another emergency loan of Ksh 50,000 on April 4, 2011. On January 17, 2011, he applied for another emergency loan of Ksh 50,000. On May 7, 2012, he applied for a loan of Ksh 600,000 and on October 19, 2009, he applied for another loan of Ksh 200,000. On October 23, 2010, he applied for a loan of Ksh 400,000 and on January 18, 2010, he applied for an emergency loan of Ksh 30,000. It is not clear how the respondent had applied for emergency loans totaling to Ksh 165,000 yet the limit for an emergency loan was capped at Ksh 80,000.
19.The respondent acknowledged that although he had taken a loan with the appellant, he had since cleared it in full. He also admitted that he had acted as a guarantor for some members, who had repaid their loans fully. He stated that he wanted a refund of his shares amounting to Ksh 650,000, dividends of Ksh 98,000, refund of Ksh 41,000 he had paid towards the purchase of a plot and refund of Ksh 10,000 he had contributed towards the purchase of a motor vehicle. When he was re-examined, he stated that:
20.DW1 testified that:
21.When he was asked by the court who among the 5 members the respondent had guaranteed, the witness did not respond.
Consideration Of The Appellant’s Pleadings, Evidence And Submissions
22.The honourable tribunal dully considered the appellant’s pleadings, evidence and submissions when it stated that:
23.This court finds that the respondent proved that he was entitled to a refund of his shares after his resignation from the appellant. It came out clearly from the appellant’s testimony that the respondent’s dividends were used to offset part of the respondent’s loan.
24.There is no dispute that the loan forms for some of the members allegedly guaranteed by the respondent had been rejected by the appellant.
25.Whereas it is true that the respondent acted as a guarantor for some members, there is no evidence that the said members defaulted in the repayment of the said loans.
26.This court finds that the honourable tribunal did not misapply the law when it found that the respondent was entitled to a refund of his shares.
27.Accordingly, for the reasons set out above, this court finds the appellant’s appeal is without merit and it is dismissed. There shall be an order for costs to be paid to the respondent by the applicant.Order accordingly.
DATED AND DELIVERED ON THIS 30TH DAY OF JANUARY, 2023.EDWARD M. MURIITHI JUDGEAppearancesMs. Gachohi, Advocate for the Appellant.Ms. Kiyuki for Mr. kaaria, Advocate for the Respondents.