Ndungu v Urithi Housing Co-operative Society Limited [2023] KECPT 1065 (KLR)

Ndungu v Urithi Housing Co-operative Society Limited (Tribunal Case 112/ E003 of 2021) [2023] KECPT 1065 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1065 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 112/ E003 of 2021

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

November 30, 2023

Between

Nduati Ndungu

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination was brought vide a Statement of Claim dated 1st February 2021 and filed on 19th February 2021. The Claimant avers to be a member of the Respondent and that on 13th November 2017, he entered into a contract with the Respondent having paid the membership fee of Kshs. 2,000/= and paid for a share capital of Kshs. 14,000/=.The Claimant avers that the contract was for the purchase of land in Kilimambogo at the sum of Kshs. 330,000/= which he promptly paid vide Receipt Number UHCRCT01431 dated 13th November 2017.

2. The Claimant avers that since the time he paid the full contractual sum, the Respondent has not honored its contractual obligation towards transferring land in Kilimambogo as agreed. Further, he avers that the Respondent promised to refund the amount paid for the piece of land through letter dated 26th February 2019, but the same has never been followed through.

3. The Claimant therefore prays for judgement against the Respondent for:a.An order for refund of the principal sum of Kshs. 330,000/=.b.Interests on (a) above at the Court’s rate from 13th November 2017 to the date of judgement.c.Costs of this suit and interest.d.Any other relief that the court may deem appropriate in the circumstances.The claim was accompanied by a Verifying Affidavit and Witness Statement sworn by Nduati Ndungu dated 1st February 2021 and filed on 19th February 2022. It’s also accompanied by the List of Witnesses and List of Documents. The List of Documents has;a.Payment Receipt No. UHCRCT01427 dated 13th November 2017. b.Payment Receipt No. UHCRCT01431 dated 13th November 2017. c.Application for Funds Transfer Letter by the Claimant dated 17th July 2018. d.Letter from Urithi Housing Co-operative Society Ltd dated 26th February 2019. e.Refund Demand Letter dated 13th August 2019.

4. Matter came up for hearing on 21st June 2023 with CW1, Nduati Ndungu giving evidence he adopted his Witness Statement dated 1st February 2021 and filed on 19th February 2022 as his evidence in chief. He produced his List of Documents dated 1st February 2021 and filed on 19th February 2022. Documents were produced as (Ex 1-5). On Cross-examination he confirmed that they did not have a Sale Agreement and that they were showed the alleged plot. There was no Re-examination.

5. In response to the claim, the Respondent filed a Statement of Defence dated 23rd April 2021 filed on 26th April 2021. The Respondent denies that it entered into any Sale Agreement with the Claimant for purchase of the alleged land.The Respondent admis that the Claimant showed interest in purchase of land in Kilimambogo however, denies the Claimant made a payment of Kshs. 330,000/=.Further, the Respondent avers that the Project in dispute could not take off as the members could not raise enough funds to pay off the land for the owner to release the title to them and as such, resolved to transfer the members to a project of equal value to their contribution.

6. Parties were asked by the Tribunal to file their Written Submissions with the Respondent filing their written Submission dated 4th October 2023 on 6th October 2023. At the time of writing this judgment the Claimant had not filed their Written Submissions.

Issues For Determinationa.Whether the Claimant is entitled to a refund?b.Who bears the costs?

Analysis a. Whether The Claimant Is Entitled To A Refund?Matter came up for hearing on 21st June 2023 where the Claimant testified and confirmed that they did not have a Sale Agreement. InPeter Mbiri Michuki v Samuel Mugo Michuki [2014] eKLRthe Court held that Section 3(3) of the Law of Contract Act provides that no suit based on a contract of disposition of interest in land can be entertained unless the contract is in writing, executed by the parties and attested. We therefore find that there was no valid contract between the parties.The Claimant filed a Payment Receipt NumberUHCRCT01431 dated 13th November 2017 evidencing the payment made of Kshs. 330,000/= to purchase the land in Kilimambogo. The Respondent on the other hand has failed to produce any evidence to support their claim.

b. Who Bears The Costs?Costs follow the event.

UpshotWe find the Claimant has proven their case and as such enter judgment in favour of the Claimant against Respondent for Kshs. 330,000/= plus costs and interest.

JUDGMENT SIGNED, DATED AND DELIVEREDVIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023Hon. MICHAEL CHESIKAW MEMBER Signed 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahMwinzi advocate for the ClaimantEchon advocate holding brief for Mr. Mwangi advocate for Respondent.Echon advocate – We pray for 30 days stay of execution.Mwinzi advocate – We are agreeable to 14 days.Tribunal order:30 days stay of execution granted to Respondent.Ruling as delivered.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023