Okwiri v Njiwa Housing Co-op. Soc [2022] KECPT 148 (KLR)

Okwiri v Njiwa Housing Co-op. Soc (Tribunal Case 309 of 2020) [2022] KECPT 148 (KLR) (Civ) (17 February 2022) (Judgment)

Neutral citation: [2022] KECPT 148 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 309 of 2020

M Mwatsama, Vice Chair, P. Gichuki & B. Akusala, Members

February 17, 2022

Between

Benson Okwiri

Claimant

and

Njiwa Housing Co-op. Soc

Respondent

Judgment

1. The matter for determination was filed via a Statement of Claim dated 21/9/20 and filed on 21/9/21. The Claimant filed a claim against the Respondent stating he was a member of the Respondent with membership No. 847. In October, 2015 the Respondent approached the members that it had acquired land within Riat Hills in Kisumu County the subject matter herein with intention to subdivide it into residential plots for sale to its members.Each plot was offered at Ksh. 690,000. 00. The Claimant in November, 2015 took up the offer and identified plot 15, 16, 18 and 19 with the Respondent surveyor. He deposited Kshs. 587,500. 00 as 1st instalment towards purchase of the plots.The Respondent at all times represented themselves as the beneficial owner of the subject parcel of land.The Claimant in total transferred Ksh. 3, 386,314. 00 to the Respondent being full payment of the 4 plots.The Claimant avers he was unable to gain access to the said plots despite full payment. The Respondent requested for more time to arrange for the possession. When the same was not forthcoming the Claimant requested for his refund of Ksh. 3, 386,314. 00 on 21/1/2020 when he wrote to the Respondent expressing his withdrawal from the investment and refund of his cash.The Respondent instead offered alternative plots in Kibos area Kisumu on 27/1/20 and suggested for the funds to be transferred there. Which Claimant was non interested. Upon various demands not yielding fruit the Claimant filed the claim and prays for;-a)A Declaration that the subject parcel was at all material times incapable of being sold and transferred by the Respondent to the Claimant;b)An order compelling the Respondent to forthwith refund to the Claimant the entire sum of Ksh. 3, 386, 314. 00 (Three Million Three Hundred and Eighty Six Thousand and Three Hundred and Fourteen Kenya Shillings);c).An order compelling the Respondent to pay to the Claimant interest on the above sum of Ksh. 3, 386,314. 00 at court’s rate from the respective date of receipt of the said sums to the date the same shall be paid dully and received by the Claimant;d)Any other relief that this Honourable court may deem fit and just to grant;e)Costs of the suit.

2. The Respondent despite being served did not enter appearance and default judgment was entered on 21/12/20. The matter came for formal proof on 4/11/21 and Claimant gave evidence adopted his witness statement and produced his documents..The issue at hand is whether the Claimant is entitled to get his refund of Ksh. 3,386,314. 00. The Respondent’s having not entered appearance nor filed a Defence the claim is unopposed. The Claimant’s list of documents dated 21/9/20 filed on even date evidence the bank transfer details dated 26/3/18, Bank transaction receipts and M-mpesa Statement evidencing deposits to the Respondent for the purchase of the plots aforementioned which were never delivered.The Claimants did not produce any evidence of an agreement entered for sale of the alleged plots. However there are receipts from the Respondent during the time period the Claimant avers to have brought the land which evidence deposits made to the Respondent for land deposit and some indicates payment for Kisumu Riat are therefore are convinced there was a transaction agreement.With the above we find the Claimant have proved his case against the Respondent and find in favour of the Claimant plus costs and interests.The Tribunal cannot rule on ownership of the property that the Claimant bought because no evidence was adduced to show the Respondent were not its owners or otherwise.a)A declaration that the subject parcel was at all material times incapable of being sold and transferred by the Respondent to the Claimant- this prayer fails.b)We order for the Respondent to refund the Claimant the sum of Kshs. 3,386,314. 00 plus costs and interest from date of filing suit.

RULING, PREPARED, READ AND DELIVERED ON VIRTUALLY THIS 1*T* DAY OF FEBRUARY, 2022 WITH WHOM P. GICHUKI AND B. AKUSALA AGREE.HON. MJENI MWATSAMA DEPUTY CHAIRPERSON SIGNED 17. 2.2022P. GICHUKI MEMBER SIGNED 17. 2.2022B. AKUSALA MEMBER SIGNED 17. 2.2022In the presenceKimathi for the ClaimantNjiwa Housing – No AppearanceSignedHON. MJENI MWATSAMADEPUTY CHAIRPERSON17/2/22