Case ID:176211

Washington Silvanus Washiali Khwale v Mumias Cane Farmers Co-operative Union Limited & another [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 12B of 2018

Parties:

Washington Silvanus Washiali Khwale v Mumias Cane Farmers Co-operative Union Limited & Alloys Mandu Chairman, Mumias Cane Farmers Co-operative Union Limited

Date Delivered:

22 Apr 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Judgment

Judge(s):

Hon. B. Kimemia - Chairperson, Hon. J. Mwatsama - Deputy Chairperson & Mr. P. Gichuki - Member

Citation:

Washington Silvanus Washiali Khwale v Mumias Cane Farmers Co-operative Union Limited & another [2021] eKLR

Court Division:

Tribunal

County:

Nairobi

Case Outcome:

Judgment entered in favour of the Claimant against the Respondent

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.12B OF 2018

WASHINGTON SILVANUS WASHIALI KHWALE.......................................CLAIMANT

VERSUS

MUMIAS CANE FARMERS CO-OPERATIVE

UNION LIMITED...................................................................................1

ST

RESPONDENT

MR. ALLOYS MANDU CHAIRMAN, MUMIAS

CANE FARMERS CO-OPERATIVE UNION LIMITED...................2

ND

RESPONDENT

JUDGMENT

1. The Claimant filed suit vide Statement of Claim(Plaint) dated 23

rd

October, 2018 seeking for prayers that:

a.

The Plaintiff has Kshs.200,000/= in cash deposited on the 1

st

Defendant/Respondent bank account plus Kshs.20,500/= deposited to the 1

st

Defendant’s Bank account through Mumias Sugar Company Limited as cane proceeds deductions for his shares and membership fee in his parent primary society – Mumias cane growers Co-operative Society. The plaintiff prays for the immediate refund of his family’s 200,000/= with interest as from the year 2011 at the current bank rates from the 1

st

Defendant;

b.

As per the Co-operative Act, the 2

nd

Defendant with his entire office stands dissolved and none could offer themselves for the office until after three years and the plaintiff prays you so find;

c.

That an interim office consisting of at least one member from every primary society of the 1

st

Defendant be put in place to cause books of account to be audited, assets recovered and reactivation of all the societies which have become dormant, within 12 months for the revival of the 1

st

Defendant;

d.

That all the monies and assets misappropriated in the 1

st

Defendant be charged to the individuals involved and recovered appropriately both at the 1

st

Defendant and the primary societies;

e.

Costs of the suit.

2. The Plaintiff avers that he has cash deposits with 1

st

Respondent amounting to

Kshs.220,500/=

which he would like to get a refund with interest from the year 2011 at current bank rates.

He claims since July 2011 there has been no annual audit of the book of accounts nor has the 1

st

and 2

nd

Respondent called for an Annual General Meeting.

He would like for the current officials to step aside and an interim office from each primary society of 1

st

Respondent be represented and books of account to be audited, assets recovered and activation of the 1

st

Respondent activities.

3. The Respondents filed a statement of Defence dated

7

th

November, 2018

on

9

th

November, 2018

and the said Defence denied the Claimant’s averments and stated the Claimant was the problem with all audit reports not being done and reprimanding him for mismanagement.

4.

CLAIMANT’S CASE – EVIDENCE

Claimant testified on

10

th

February,2021

and claimant led evidence to the effect that he wanted a refund of

Kshs.200,000/=

from 1

st

Respondent which he deposited 7 years ago.

He adopted his witness statement and produced documents as evidence . He stated he was aggrieved how he was removed from office by 2

nd

Respondent with assistance from officials of Co-operative.

His prayer is for a refund of Kshs.200, 000/= which he deposited out of good will to pay the workers.

He claims since 2011 the 1

st

Respondent has not carried out any audits and request for an order for office to be audited and new officials to be put in place.

5. The matter proceeded in the absence of the Respondents who were aware of the date as it was taken by consent.

6. Taking into consideration the Respondent’s statement of Defence the issues for determination are:

(i) Is the Claimant a member of the 1

st

Respondent?

(ii) Is the Claimant entitled to a refund of Kshs.200, 000?

(iii) Interim officials.

(i)

Is the Claimant a member of the 1

st

Respondent?

From the facts and evidence before the Tribunal the members find the Claimant is a member of the 1

st

Respondent and his position as chairman was relinquished in.......2011.

No evidence has been adduced to confirm his exit or resignations from the 1

st

Respondent.

(ii)

Is the Claimant entitled to a refund of Kshs.200, 000/=?

The Claimant in his evidence stated he deposited the Kshs.200,000/= in his account on 16

th

August, 2011 for purposes of paying the 1

st

Respondent employees their dues and expected a refund back.

The Claimant now wants the said Kshs.200, 000/= to be refunded.

The Claimant being a member of 1

st

Respondent and having shares in the said Sacco is and can request for the refund when he so wishes.

There being no evidence of liabilities on his end we find he ought to be refunded his cash deposit.

The Respondents in their Defence and Documents filed have alluded to a report citing mismanagement by the Claimant as per a report by the Commissioner’s Office.

The report does not disclose details of the mismanagement and who is to be held liable and the extent of the liability.

With this in mind we find the Claimant is entitled to his refund of Kshs.200,000/= which is not denied by the Respondents.

(iii)

interim officials to be constituted.

The Claimant would like the current office board to be dissolved and an interim office be constituted with one member from every primary society.

The status of the 1

st

Respondent is not known at the Tribunal and the current officials and/or office bearers not known.

The constitution of the 1

st

Respondent’s office is unknown and thus the members of the Tribunal cannot be seen to disturb the

status quo.

UPSHOT

The final analysis judgment is entered in favour of the Claimant as against the Respondent as follows:

1. Kshs.200, 000/= be refunded to the Claimant.

2. The prayer for the 2

nd

Respondent and officials (to stand dissolved is not granted) fails.

3. Interim office to be constituted with all primary society and audit fails.

4. A report be filed by the Commissioner of Co-operatives on the status of the 1

st

Respondent and thereafter an Annual General Meeting to be held.

5. Costs and interest at court rates from date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF APRIL, 2021.

HON. B. KIMEMIA CHAIRPERSON ....................................

HON. J. MWATSAMA DEPUTY CHAIRPERSON ....................................

MR. P. GICHUKI MEMBER ....................................