Hinga v Urithi Housing Co-operative Society Limited [2024] KECPT 227 (KLR)

Hinga v Urithi Housing Co-operative Society Limited (Tribunal Case 62 of 2020) [2024] KECPT 227 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 227 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 62 of 2020

BM Kimemia, Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

March 7, 2024

Between

Elizabeth Wanjiku Hinga

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is a Plaint dated 15th January 2020. In the Plaint, the Plaintiff avers that she was a member of the Respondent, member number 24166, that she accepted an offer from the Respondent and commenced steps to purchase a parcel of land dubbed “Ruiru Ridge” with the hope of acquiring half an acre of the said parcel for Kshs. 6,500,000/=. It is the Plaintiff's case that she paid Kshs. 854,000/= to the Respondent and an additional Kshs. 169,000/-. The subject land was changed to “Malindi Lulu Project” and although the Plaintiff avers that she did not object to the change, she has never been given the vacant possession for the land. The Claimant therefore prays for:a.An order for immediate specific performance of the agreement and delivery of possession of land.b.In the alternative, a refund of Kshs. 1,023,500/=.c.Interest on (b) above at court rates as from 20th September, 2017 until payment in full.d.Costs of the suit and interest thereon.e.Any other or further relief as the court may deem necessary to grant.The Claimant filed a witness statement and a List of Documents in support of her claim.The Respondent filed a Memorandum of Appearance dated 13th March 2020 and filed on 5th June 2020, and a Statement of Defence. In the Statement of Defence, the Respondent admits that the Claimant was its member, however avers that it did not receive a full payment for the plot of land from the Respondent. The Respondents also avers that the Sacco uses a Cooperative model.

2. During hearing, the Claimant testified and produced her Witness Statement and List of Documents for adoption by the court. In her testimony, the Claimant reiterated her claims in the Statement of Claim. When asked about a model used by the respondents in the purchase of land, the Claimant responded that she did not know. The Respondents did not present any witnesses during the hearing. Both parties agreed to file written submissions.

3. Both parties filed their submissions.

Analysis 4. The Tribunal has noted all the pleadings filed and the evidence produced during the hearing. The submissions of the Claimants and Respondents have also been duly considered.

5. It is not in dispute that the Claimant was a member of the Respondent. The Respondent admits to this fact. It is also not in dispute that the Claimant made payments to the Respondent. The Respondent did not deny the receipts the Claimant claimed were issued by the Respondent. The Respondent’s only issue is that the Claimant did not finish paying the purchase price, and that there is a model that the Respondent normally works with, whereby land can only be given to a buyer when all the buyers in that lot have cleared the purchase price.

6. This is a contract whereby the Claimant purchased land from the Respondent and paid an initial sum of money. The party who was in control of the land is the Respondent as it is the one in touch with the initial owner of the land and all other intended purchasers. There is also no evidence that the Claimant was informed of this model, or that she accepted that the physical ownership of her land would depend on other purchasers. The buyer has no control at all of the other purchasers since she is not a privy to the contract between the Respondent and them. We feel that ordering for specific performance, for a land that the Respondent has admitted that the challenge of performance is the other buyers, would not be appropriate since it will be faced by the very challenge that has made it impossible to show the Claimant his land.

7. The upshot of the above is that we find merit in the Claimant’s claim. We order as follows:a.A refund of Kshs. 1,023,500/=.c.Costs of suit and interest from date of filing suit at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024TRIBUNAL CLERK - JEMIMAHMiss Macharia advocate holding brief for Ms. Kale for ClaimantEchom advocate holding brief for Mwangi for RespondentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024Echom advocate : I pray for 30 days stay of execution.Macharia advocate: No objection.Order: 30 days stay of execution granted.HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024