Kinyanjui v Urithi Housing Co-operative Society Limited [2023] KECPT 848 (KLR)

Kinyanjui v Urithi Housing Co-operative Society Limited (Tribunal Case 184 of 2021) [2023] KECPT 848 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 848 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 184 of 2021

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

August 31, 2023

Between

Kelvin Wainaina Kinyanjui

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The Claim for determination is brought vide a Statement of Claim dated 12/04/2021 and filed on 13/04/2021. The Statement of Claim is accompanied by a Verifying Affidavit by Kelvin Wainaina Kinyanjui dated 12/04/2021 and filed on 13/04/2021. The Claimant relies on his list of documents dated 12/04/2021 and filed on13/04/2021. The documents included the Investment Agreement, Demand Letter, Redemption Notice and copies of the receipt of invested amount.

2. The Claimant avers that on 14/03/2016 he invested a sum of Kshs 200,000/- to Mavuno Investment, a corporate bond offered by the Respondent. The bond was to yield a guaranteed return of 20% per annum. He further invested a sum of Kshs 200,000/- to Heritage Investment, another corporate bond offered by the Respondent. The amounts were paid on separate dates; Kshs 100,000/- was paid on 18/01/2017 while the balance of Kshs 100,000/- was paid on 24/08/2017. The Claimant further avers that he was entitled to a guaranteed return of between 5%-16% on graduating scale paid semi-annually and a redemption rate of 10% if the redeemed his investment in the 4th Year.

3. The Respondent filed a Statement of Defense dated 07/06/2021 and filed on 10/06/2021. The Respondent denied the claim by stating the Claimant did not subscribe to its product by the name of Mavuno Investment and Heritage Investment by investing Kshs 200,000/- on each product. The Respondent further avers that the receipts produced by the Claimant refer to another project referred to as Hilltop Cottages.

4. Being a matter of refunds, both parties were directed to dispense the matter by way of written submissions. The Claimant filed his written submission dated 14/09/2022 on 06/10/2022 while the Respondent filed theirs dated 16/03/2023.

Issues For Determination. 5. After perusal of the pleadings and the written submissions we are of the opinion that the only issue for determination is whether the Respondent owes the money claimed.

6. It is trite law that he who makes a claim has a duty to prove it as was held in Evans Otieno Nyakwana v Cleophas Bwana Ongaro High Court Civil Appeal No. 7 of 2014[2015] eKLR. Further section 107 of the Evidence Act requires the Claimant to bear the burden of proving his case.

7. The Claimant has proved that he indeed paid money amounting to Kshs 200,000/=. He produced the receipts to confirm that the payment was received by the Respondent. However, after close examination of the receipts, the particulars indicate that the payments were for Hilltops Cottages which is different from what the Claimant claims in the Statement of Claim. We therefore are of the opinion that the Claimant has not proved his case on a balance of probabilities.

Determination. 8. From the foregoing, we find that the statement of claim lacks merit and consequently is dismissed.

9. Each party to bear their own costs.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Wainana advocate for the ClaimantEchon advocate holding brief for Mr. Mwangi advocate for the Respondent.Echon advocate - We request for 30 days stay of execution of the JudgmentWainana advocate – We object and we can agree for 14 daysTribunal order21 days stay of execution granted to Respondent.Judgment as read out on 31. 8.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023