Mulei v Urithi Housing Co-operative Society Limited [2023] KECPT 757 (KLR)

Mulei v Urithi Housing Co-operative Society Limited (Tribunal Case 365/E71 of 2021) [2023] KECPT 757 (KLR) (3 August 2023) (Judgment)

Neutral citation: [2023] KECPT 757 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 365/E71 of 2021

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

August 3, 2023

Between

Josephine M. Mulei

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is brought vide a Plaint dated 23/08/2021 and filed on 26/08/2021. It was filed together with a Verifying Affidavit dated 23/08/2021 and filed on 26/08/2021. The Claimant also filed a List of Documents dated 23/08/2021 and filed them on 26/08/2021.

2. The Claimant avers that she was a member of the Defendant. The parties entered into an Agreement for Sale of Apartment No 22 erected on Title Deed No Mavoko Town Block 3/52732- Machakos County. Further, that the completion of the apartment was to happen on or at the end 24 months from the day of execution of the Sale Agreement. The Plaintiff however, the apartment is yet to be completed.

3. The Claimant also avers that they entered into another Agreement for the Sale of the following parcels of land; Plot No 10 KJD/Kaputiei/North/60034 and Plot No 40 KJD/Kaputiei/North/60034. Each parcel of land measuring 50m by 100m and at a consideration of Kshs 270,000/=. However, transfer of the same has not happened despite payment of the consideration as required. The Claimant avers that the delay has occasioned losses and as a result asked for a refund of the money paid for the apartment and the two parcels of land. The Claimant’s advocate went ahead and served a Rescission Notice to the Respondent. The Claimant claims the defendant offered alternate projects, a request the Claimant denied.

4. The Claimant prays for a refund of Kshs 2,088,000/= plus costs and interests of the suit.

5. The Respondent filed a Statement of Response in opposition to the claim dated 24/09/2021. The Respondent avers that the project had experienced challenges owing to non-completion of payments by the Respondent’s members who subscribed to the projects. Further, the Respondent avers that the issue of refund does not occur since the amount was used to pay surveyor’s expenses and other expenses and the money sunk in the project. The Respondent claims that members are encouraged to take up other on-going projects of their choice with equal value to the paid up projects.

6. The matter came up for hearing on 2/11/2022 where the Claimant case was heard and closed. The Claimant called one witness Josephine M Mulei who adopted her witness statement dated 17/01/2022 as her evidence in chief. She also adopted her list of documents dated 23/08/2021 as her exhibits. The Respondent did not call any witnesses and relied on their submissions.

7. The Tribunal directed filing of writing submissions with the Claimant filing theirs dated 05/03/2023 on 06/04/2023. The Respondent filed their submissions on 29/05/2023.

Issues For Determination. 8. After perusing the pleadings and the written submissions, it is the Tribunal’s opinion that the issue for determination is only one: Whether the Claimant is entitled to get her refund?

9. It is the trite law the he who alleges must prove as was held in Wairimu Ndiritu v Joseph Kiprono & Another. The Claimant testified giving her evidence of payment and backing it up with producing the sale agreements for the apartments and the parcels of land which were duly executed. The corresponding bank deposit receipts proving payment of the consideration were also produced. The Respondent did deny issuing the receipts indicating receiving payment of consideration nor refute that the monies were paid.

10. The Respondent did not adduce any evidence to the contrary to show money was not deposited into their account other than mere denials.

11. We find that the Claimant did indeed keep her end of the bargain as required by the agreements. The Claimant was keen on fulfilling the terms of the agreement by following up through correspondences but the Respondent did not seem keen of completing the transactions. To this end, the Claimant served the Respond with a Rescission Note in a bid to be released from the sale agreement and also to get her refund as required by law.

Upshot. 12. The Tribunal finds in favor of the Claimant against the Respond for Kshs 2,088,000/= plus costs and interests at Tribunal rates from date of filing the claim.

13. Mwangi advocate for Respondent – I pray for 30 days stay of execution.Dr. Hashim for Claimant- No objectionOrder: 30 days Stay of Execution granted.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIACHAIRPERSONHON. J. MWATSAMADEPUTY CHAIRPERSONHON. BEATRICE SAWEMEMBERHON. FRIDAH LOTUIYAMEMBERHON. PHILIP GICHUKIMEMBERHON. MICHAEL CHESIKAWMEMBERHON. PAUL AOLMEMBER