Njaga v Urithi Housing Co-op Soc Ltd [2023] KECPT 66 (KLR)

Njaga v Urithi Housing Co-op Soc Ltd (Tribunal Case 2 of 2020) [2023] KECPT 66 (KLR) (Civ) (23 February 2023) (Judgment)

Neutral citation: [2023] KECPT 66 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 2 of 2020

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

February 23, 2023

Between

Raymond Karanja Njaga

Claimant

and

Urithi Housing Co-Op Soc Ltd

Respondent

Judgment

1. The Matter for determination is brought vide a Memorandum of Claim dated 20/12/2019 filed on 9/1/20. Claimant avers he was member of respondent and respondent offered a 2 bedroom maisonette No. 87 to be erected on land reference No. 11407/848, 849, 850 and 851 reference to as Gem Juja Phase III for Ksh. 2,995,000. 00. The claimant paid 1,000,000. 00 and was duly receipted for with receipt No. 85913. The respondent official could not identify the plot and thus claimant requested for his refund. On October 4, 2018 claimant forwarded respondent his bank deposit slip plus original receipt for the refund.Theclaimant’s prayer is for;-a.Kenya Shilings One Million (Ksh. 1,000,000. 00)b.Interest at the Commercial rates prevailing from time to time on (a) abovec.Costs of suit together with interest thereon at such rate and for such period of time as this honourable tribunal may deem fit to grant.d.Any other or such further relief that this honourable tribunal may deem fit to grant.

2. The respondent filed Statement of Defence dated 10/5/20 filed on 30/6/20 denying the claim. The respondent admit Claimant is their member and they agreed to sell Gem Juja Phase III but claimant has not deposited any cash.Matter came for hearing on 30/8/22 and C.W.1-Raymond Karanja who adopted his witness statement dated 20/12/19 filed on 9/1/20 as his evidence in chief and produced his list of Documents dated 20/12/19. The claimant stated respondent did not fulfil their obligation and it was only in 2017 he realized he had been conned.Respondent’s did not call any witnesses to give evidence.

3. Parties were to file written submissions andclaimant filed their written submissions dated 12/9/22 on 21/10/22. Issue for DeterminationIssue OneWhether the Claimant is entitled to get her refund?The claimant testified giving his evidence of payment which was uncontroverted upon the claimant producing his evidence receipt No. 85913 for Ksh. 1,000,000. 00. The respondent did not deny issuing the said receipt nor did not refute that monies were paid.Respondent did not adduce any evidence to the contrary to show money was not deposited into their account other than mere denials.

4. With the evidence by claimant and documents produced we are convinced that indeed the claimant deposited money to respondent’s account. The respondent’s have not kept their end of the deal and are merely refusing to refund the claimant’s cash.UPSHOTWe find in favour of claimant against respondent for Ksh. 1,000,000. 00 plus cost and interest of the suit.

JUDGMENT, READ AND DELIVERED VIRTUALLY THIS 23RD FEBRUARY, 2023Hon. Mjeni Mwatsma D/Chairperson Signed 23. 2.2023Gitonga Kamiti Member Signed 23. 2.2023Maria Mbeneka Member Signed 23. 2.2023In the presenceKemboi Advocate for the ClaimantMwangi Advocate for the RespondentMwangi Advocate – we pray for 30 days stay of executionKemboi Advocate – we pray they be granted 21 days.TribunalRespondent granted 21 days stay of execution.SignedHon. Mjeni MwatsamaDeputy Chairperson23/2/23