Gitonga v Urithi Housing Co-operative Society Limited [2022] KECPT 892 (KLR)

Gitonga v Urithi Housing Co-operative Society Limited (Tribunal Case 477 of 2019) [2022] KECPT 892 (KLR) (Civ) (8 December 2022) (Judgment)

Neutral citation: [2022] KECPT 892 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 477 of 2019

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

December 8, 2022

Between

Purity Wangu Gitonga

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

(Coram before Hon.Mjeni Mwatsama-D/Chairperson, G. Kamiti and M. Mbeneka)

Judgment

1. Statement of Claim to be determined is vide a plaint dated August 13, 2019 filed on August 19, 2019. The Claimant avers she was a member of Respondent and sometime in 2017 she insisted in the Respondent’s project known as Gem Juja Project to purchase on housing unit.The purchase price was Ksh 3, 700,000 million. The Claimant made payment of Ksh 3,339,480. 00 towards the purchase of the unit. The Respondent moved the completion date from December, 2017 to March, 2018 and project is yet to be complete.Her concerns on the delay were not addressed and thus prays for;a.Refund of Ksh 3,339,840. 00 together with interest from March 31, 2018 until payment in full;b.Costs of this suit;c.Any other or further relief this honourable court may deem fit grant.

2. The Respondent filed a Statement of Defence dated August 30, 2019 denying the Claimant’s averments. The Respondent denies receipts of any consideration on the monies from the Claimant and in the alternative issue of refund would not arise as deposit was used to pay owners of land and surveyor expenses and prayed for claim to be dismissed with costs.

3. The matter proceeded for hearing on April 20, 2022 CW1- Purity Wangui gave evidence and adopted her witness statement dated August 13, 2019 filed on August 19, 2019 the same used as her evidence in chief.On cross-examination the Claimant stated she did not complete paying for the purchase price. She stated on following up she was advised to choose another project. She further stated she did not execute a sale agreement.The Respondent did not call any witness and closed their case.

4. Parties were directed to file written submissions and Claimant filed their written submissions dated June 10, 2022 on September 6, 2022 and Respondent filed their written submissions dated August 5, 2022 on September 6, 2022. Having considered the pleadings, evidence of Claimants and written submissions there is only one issue to be determine.

Issue OneWhether the Claimant is entitled to be reimbursed her deposit of Ksh 3,339,840. 00. It is not in dispute the Claimant deposited Ksh 3,339,840. 00 with Claimant for Gem Juja Project. The said Gem Juja Project for reasons best known to Respondent and not explained did not take place.As a result the Respondent opted to give the Claimant another project. The letter of offer as per the documents availed in court was for Gem Juja Project. That is the one the Claimant signed up for. 5. An alternative project being offered does not warrant to Respondent to refuse to reimburse the Claimant for a failed project.Whether or not the Claimant accepted or decline the project that is not what is in contention.Question- Does the Respondent owe the Claimant Ksh 3,339,840. 00?The answer is in the affirmative because the project which Claimant was paying for did not take off.To this end we find that indeed the Respondent owes the Claimant.

Upshot 6. We find in favour of Claimant against Respondent for Ksh 3,339,840. 00 plus cost and interest from date of filing suit.

Judgment, Read and delivered virtually December 8, 2022. Hon. Mjeni Mwatsama - D/Chairperson Signed 8. 12. 2022Gitonga Kamiti - Member Signed 8. 12. 2022Maria Mbeneka - Member Signed 8. 12. 20222| CTC 477 OF 19 Page