Ngari v Broad Borders Housing Co-operative Society Ltd [2025] KECPT 358 (KLR)

Ngari v Broad Borders Housing Co-operative Society Ltd (Tribunal Case E492 of 2023) [2025] KECPT 358 (KLR) (26 June 2025) (Judgment)

Neutral citation: [2025] KECPT 358 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E492 of 2023

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

June 26, 2025

Between

John Irungu Ngari

Claimant

and

Broad Borders Housing Co-operative Society Ltd

Respondent

Judgment

1. Matter for determination is statement of claim dated 4/10/2023 filed on 14/12/2023. Claimant states he is a member of Respondent Sacco with membership no 8196. Claimant avers on around 21/4/2022 he entered an agreement with Respondent for sale of land measuring 1/8 of an acre plot number for land parcel no Kiine /Thigirichi for Kshs 600,000/=.

2. The Respondent have give/transfer the land.

3. The Claim is for:a.An order for transfer of 1/8 of an acre plot number 5 out land parcel number Kiine/Thingirichi to John Ngari Irungu or alternatively a refund of Kshs. 600,000/= amount paid plus penalty as per the agreement.b.General and exemplary damages.c.Costs of this suit.d.Any other relief this Honourable court may deem fit to grant.

4. Claimant filed list of Documents 4/10/2023. Include:1. A copy of share certificate2. A copy of ownership certificate3. Sales agreement4. Payment receipt5. Demand notice6. Any other relevant documents that the court may deem fit to be called upon.

5. The Respondent did not enter appearance .On 18/11/2024 the Tribunal entered default judgement against Respondent and matter come for formal proof on 9/4/2025

6. The issue remaining being one of General damages payable as per Statement of Claim. Claimant opted to file written submissions. Claimant filed written submissions dated 29. 4.2025.

7. We have considered the same and we are guided by courts decisions and the law of constraint.

8. General Damages are not as of right. The aim of General damages to place the injured party in this case Claimant for a position they would have been had the contract been fulfilled.

9. In this case of HCCA No.14 of 2020 Kajiado Kenya women Microfinance limited Vs Martha Wangari Kamau In paragraph 60 of the judgment. Justice Mwita said:the law is that general damages are not awardable for breach of contract or contractual obligations .A contract for performance of specific duties or obligations if breach would lead to compensation for the specific loss suffered as a result of the breach but not general damages paragraph 61. The Kenya Tourist Development corporation vs Sunder Rover Lodge limited supra. the appellant agreed to give the Respondent a loan of Kshs.15,000,000/= for consideration of a hotel.However the appellant unilaterally withdrawn that offer .The Respondent filed a suit claiming general damages of Kshs 421,760/= in the form of opportunity loss and loss of business following breach of contract .The High awarded Kshs 30,000,/= for breach of contract .on appeal the Court Appeal held that as a general member ,general damages are not recovered in cases of alleged breach of contract ,Damages for breach of contract are compensation aggrieved party and restitution of what he has lost by the breach 62. Dharanish vs Karsan ( 1974) EA 41 it was held that General Damages are not awardable for breach of contract in addition to qualified damages as it would amount to duplication.”

Upshot, 10. We are thus not convinced that claimant is entitled to have general damages and exemplary damagesa.Judgement is entered in favour of Claimant against Respondent for Kshs 600,000/= plus cost and interest from date of filing suit.b.General and exemplary damages- Fails.

JUDGEMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF JUNE, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26 .6. 2025HON. BEATRICE SAWE MEMBER SIGNED 26 .6. 2025HON. FRIDAH LOTUIYA MEMBER SIGNED 26 .6. 2025HON. PHILIP GICHUKI MEMBER SIGNED 26 .6. 2025HON. MICHAEL CHESIKAW MEMBER SIGNED 26 .6. 2025HON. PAUL AOL MEMBER SIGNED 26 .6. 2025Tribunal Clerk A.GechikoNo appearance by parties.Judgment delivered in the absence of parties.HON. J. MWATSAMA – DEPUTY CHAIRPERSON SIGNED 26/06/2025