Muchoki v Urithi Housing Co-operative Society Limited [2023] KECPT 839 (KLR)

Muchoki v Urithi Housing Co-operative Society Limited (Tribunal Case 235 of 2021) [2023] KECPT 839 (KLR) (26 October 2023) (Judgment)

Neutral citation: [2023] KECPT 839 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 235 of 2021

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

October 26, 2023

Between

Beth Wambui Muchoki

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 6th May 2021 in which the Claimant avers that he was a member of the Respondent, member number UHCS/4206. The Claimant avers that the Respondent was an owner of a Parcel of land known as L.R. No. 1363/33A situated at the Northeast of Thika. The Respondent divided this piece of land into various plots, and the Respondent offered these plots to its members including the Claimant herein. The Claimant accepted the offer and agreed to purchase a portion of the said parcel of land, identified as Plot Number 1363/33A/Plot 299 for consideration of Kshs. 355,000/-. The Claimant claims that she finished paying the project amount and was awarded a Certificate of Ownership on 6th May 2016. However, since then, she has never been given the vacant possession for the land. Her claim is that the Respondents breached the agreement. The Claimant therefore prays fora)A refund of the total amount paid of Kshs. 355,000/=b).General damages for the breach of contract.c).cost of the suit and interest thereon since May 2016. d).any other relief that the Honourable court may deem fit.The Claimant filed a Witness Statement and a List of Documents both dated 6th May 2021 and filed on 20th May 2021.

2. The Respondent filed a Memorandum of Appearance dated 7th day of June 2021 and filed on 10th June 2021, and a Statement of Defence dated 21st June 2021 and filed on 22nd June 2021. 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 did not file any documents. The Respondents filed a List of Witnesses dated 5th April 2022 and filed on 5th April 2022.

3. 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 witness during the hearing. Both parties agreed to file written submissions.

4. In their submissions the Claimants.

5. In their submissions, the Respondents submitted that the Claimant’s did not enter into any agreement for the sale of land with the Respondent. This they claim that the Claimant did not file a Sale Agreement, and neither did they produce one during the hearing. That they only advanced an invitation to treat to the claimant that did not materialize to any contract. On this they relied on the case of Ladopharma Company Limited v National Hospital Insurance Fund (2005) eKLR. The Respondents also deny receiving money from the claimant, and that if it did the money sunk in the project and the owner is yet to receive a refund. Prays this court to dismiss the claim with costs.

6. 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.

7. 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 amounting to Kshs. 355,000/= to the Respondent. The Respondent did not deny the receipts the Claimant claimed were issued by the Respondent. The Respondent disputes that the Claimant did not finish paying the price and also claims an alternative that they cannot refund because an ‘Owner’ of the big chunk is yet to refund. The Tribunal finds that the Respondent is putting a burden on the Claimant that it is not supposed to bear.

8. The upshot of the above is that we find merit in the Claimant’s claim. We order as follows: Judgment in favour of Claimant against Respondent for:a.A refund of Kshs. 355,000/=.c.Costs of suit and interest from date of filing suit at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023TRIBUNAL CLERK JONAHHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023