Kimwere v Chairman Urithi Housing Society Limited & another [2024] KECPT 1155 (KLR)

Kimwere v Chairman Urithi Housing Society Limited & another (Tribunal Case 242 of 2021) [2024] KECPT 1155 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1155 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 242 of 2021

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

July 25, 2024

Between

Helen Wanja Kimwere

Claimant

and

Chairman Urithi Housing Society Limited

1st Respondent

Urithi Housing Cooperative Society Limited

2nd Respondent

(Coram: Hon. B. Kimemia-Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

Claimant’s Case 1. The Claimant’s case is contained in the Statement of Claim dated 17. 12. 2020, her documents dated 17. 12. 2020, her witness statement of 17. 12. 2020 and hearing of Claimant’s case on 6. 11. 2023. The Claimant’s case is summarized in Claimant’s written submissions dated 17. 4.2024. In her Statement of Claim, the Claimant was a member of the Respondent member number 742. She entered into a contract with Respondent on 22. 6.2017 and paid Kshs. 500,000/= for the project termed as Urithi Dhahabu Investment.The terms of the agreement were:a.Amount deposited were refundableb.Purpose of the deposited amount was to generate income to the Claimantc.The minimum return was to be 18% per annum and maximum was 14% per annum.The Claimant states that she deposited Kshs. 500,000/= in the Respondents account at Family Bank Account Number xxxxxx and avers that she was given a receipt for the same.She states that despite writing to the Respondent for returns or refund of the deposit, the Claimant has failed to respond. She avers that the Respondents have failed to honor the Agreement since 2019. She prays for a refund of the Kshs. 500,000/= deposit and interest for 5 years, damages for breach of contract and costs and interest since date of breach.

2. The Claimant has collaborated her claim in her Witness Statement dated 17. 12. 2020. She avers that she credited Kshs. 500,000/= in the Respondent account and was issued with two receipts one for Kshs.14,000/= for share holding and the Kshs. 500,000/= investment. She states that she opted for the semi-annual return on investment.

3. The Claimant has filed documents in support of her claim. Among the documents filed are:a.Registration fee receipt with the Respondent of 31. 5.2017. b.Receipt from Respondent on the Kshs. 500,000/= of 31. 5.2017c.Receipt by Respondent receiving bankd.Membership number 742 with the Respondente.Cooperative Bank Statementf.Agreement signed between Claimant and Respondent.During the hearing, on 6. 11. 2023, the Claimant adopted her Statement and Documents as her Evidence-in-Chief. She prayed the court to assist her get Kshs. 500,000/= deposit and returns thereof as per the Agreement.

4. The Respondent was not in attendance during the hearing. In the Claimant’s written submissions dated 17. 4.2024, she highlights the landmarks in this case. She avers that the Defence did not defend this case. She avers that the matter was set for Formal Proof hearing after interlocutory judgment was entered against the Respondent.

5. The Claimant justifies the Kshs. 500,000/= by filing relevant citations.The Claimant quotes Section 27 of the Civil Procedure Act to justify the claim on costs against the Respondent.

6. The Respondent did not file any Defence. The Respondent advocate on 19. 5.2022 reported that there was a similar matter in Murang’a CMCC.NO.272 of 2019 which was dismissed for want of jurisdiction. Summary judgment was entered on 1. 11. 2024.

7. We note that the Claimant has adequately prosecuted her case from the Statement of Claim to the hearing.We also note that she has filed evidence to proof that the Respondent was at all times served as evidenced in the following documents in the court file.a.Evidence of service dated 6. 8.2023 and 4. 11. 2023. b.Tribunal summons of 15. 6.2021c.Reminder on request for judgment dated 8. 10. 2021d.Notice of dismissal of 2. 5.2023. e.Judgment issued in favour of Claimant on 12. 10. 2021 for refund of Kshs. 500,000/= plus costs.

Findings 8. We find that the Respondent failed to adequately prosecute their case despite being served with notices and intention to dismiss the case.

The Claimant has proved her case throughout the entire process.

ConclusionWe therefore enter judgment in favour of the Claimant against the Respondent for a refund of Kshs. 500,000/= plus costs and interest at Tribunal rates from the date of filing claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. Hon. B. Kimemia Chairperson Signed 25. 7.2024Hon. J. Mwatsama Deputy Chairperson Signed 25. 7.2024Hon. Beatrice Sawe Member Signed 25. 7.2024Hon. Fridah Lotuiya Member Signed 25. 7.2024Hon. Philip Gichuki Member Signed 25. 7.2024Hon. Michael Chesikaw Member Signed 25. 7.2024Hon. Paul Aol Member Signed 25. 7.2024Tribunal Clerk JemimahNo appearance by the parties.Judgment delivered in the absence of the parties.Hon. B. Kimemia Chairperson Signed 25. 7.2024