Mutungi v Actionaid Sacco Ltd [2024] KECPT 1391 (KLR)

Mutungi v Actionaid Sacco Ltd (Tribunal Case 173 of 2020) [2024] KECPT 1391 (KLR) (22 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1391 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 173 of 2020

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

August 22, 2024

Between

Fredrick zakayo Mutungi

Claimant

and

Actionaid Sacco Ltd

Respondent

Judgment

1. The Plaintiff was a member of the Respondent SACCO and in 2014 purchase a sub-plot as a member of the Respondent and paid the whole purchase price.

2By 2020, the Respondents has still failed or refused to issue the Plaintiff with a title deed necessitating the filing of this case.

3According to the Plaintiff, the very act of the Respondent failing or refusing to issue him with a tittle deed made him suffer loss and damage and was also in breach of the agreement they had.

4The Plaintiff filed a Statement of Claim dated 29th June, 2020 seeking among others.a.Orders of specific performance compelling the Respondent to transfer the land and issue the plaintiff with a title,b.Or in the alternative, the Respondent to refund the Plaintiff the amount paid as purchase price plus interest.

5The Respondent despite being served, did not file a Memorandum of Appearance or Statement of Defence necessitating the Plaintiff to request for judgement in default of filing a Defence.

6. This court on 5th September, 2022 entered judgement in favor of the claimant against the Respondent and set a date for formal proof.

7At the formal proof hearing on 20th February, 2024, the Plaintiff stated that he was a member of the Respondent SACCO No. 1817 till 2020 and purchased the land at cost of Kshs. 1,300,000/= and paid in full- the money was deducted through check –off from his salary. It was his request to the Tribunal to order or counsel the respondent to issue him with a title deed.

8We have looked at the pleadings filed and the evidence on record and the only question remaining for determination is as to whether this Tribunal should order the Respondent to issue the Plaintiff with a title deed.Question: Should this Tribunal order the Respondent to issue the Plaintiff with a title deed.

9To compel a party to honor or complete forms of an Agreement of Sale is known as specific performance in Reliable Electrical Engineers (K) Ltd. Vs Mantrac Kenya Ltd (2006) and KLR, it was the courts position that:-“The jurisdiction of specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or un enforceable .”

10. We have considered the facts of this case, including as to whether there is another alternative adequate remedy or remedies that can compensate the plaintiff. It is imperfect to note that such options had been considered before, but at this moment may not be just and adequate or be in line with equity. The Plaintiff has proved to our satisfaction that there was a valid sale agreement and that he met his part of the bargain and as such order for specific performance.

Upshot1. Statement of Claim dated 29th/6/2020 is merited. We order for specific performance against Respondent to transfer the land that is, sub plot in Kaputiei.2. Plus, cost of the suit awarded to the Claimant.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. Hon. B. Kimemia Chairperson Signed 29. 8.2024Hon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024Hon. Beatrice Sawe Member Signed 29. 8.2024Hon. Fridah Lotuiya Member Signed 29. 8.2024Hon. Philip Gichuki Member Signed 29. 8.2024Hon. Michael Chesikaw Member Signed 29. 8.2024Hon. Paul Aol Member Signed 29. 8.2024Tribunal Clerk JonahHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024