Wanjiru & 2 others v Uriithi Housing Cop Society Ltd & another [2024] KECPT 1398 (KLR)

Wanjiru & 2 others v Uriithi Housing Cop Society Ltd & another (Tribunal Case 363 (E126) of 2021) [2024] KECPT 1398 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1398 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 363 (E126) of 2021

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

August 29, 2024

Between

Evaline Wanjiru & 2 others

Claimant

and

Uriithi Housing Cop Society Ltd & another

Respondent

Judgment

Claimants Case 1. The Claimant’s case is based on the following; Statement of claim dated 28th July 2021.

Claimant’s witness statements dated 28th July 2021.

Claimant’s documents dated 28th July 2021.

Hearing of the case on 23rd January 2024.

Claimant’s written submissions dated 27th February 2024.

Reply to response dated 5th October 2021.

2. In the statement of claim dated 28th July 2021, the Claimants state that they are Members of the 1st Respondent. They state that they invested with the Respondent as follows;a.1st Claimant Kshs 1 million at a negotiable interest of 25%.b.2nd Claimant Kshs 2 million at a negotiable rate of 25%.c.3rd Claimant Kshs 1. 5 million at a negotiable interest of 24%.

3. For the three investments, each Claimant had entered an individual agreement with the 1st Respondent.

4. They state that the Respondent has failed to perform its obligations as per the agreement. They therefore pray for judgment against the Respondent for among others;a.1st Claimant Kshs 1,956,250 plus interest of 25%.b.2nd Claimant Kshs 3,417,514 plus interest of 25%.c.3rd Claimant Kshs 3,300,000 plus interest of 25%.

5. Each of the three Claimants have filed a separate witness statement all dated 28th July 2021 where the Claimants have reiterated their individual claims as per the joint statement of claim.

6. The Claimants have filed documents dated 28th July 2021 which include the following;a.1st Claimant Member statement

Investment application form for Urithi Heritage project

Investment application for Mavuno Project.b.2nd Claimanti.Share certificateii.Urithi Heritage Project application formiii.Urithi Heritage Project payment statementiv.Registration fee receiptc.3rd Claimanti.Urithi Mavuno project application form

7. During the hearing of the case on 23rd January 2024, the 1st Claimant Evaline Kibuchi represented the 2nd and 3rd Claimant. She confirmed that she knew the 2nd and 1st Claimants, Barnabas Mutuku and Richard Muriuki respectively and confirmed that they had authorized her to represent them in this case vide authority dated 28th July 2021.

8. She adopted her witness statement dated 28th July 2021 as her evidence in chief. She also adopted the witness statements of Mr Barnabas MUtuku and Richard Muriuki both dated 28th July 2021 as their evidence in chief.

9. The 1st Claimant on behalf of the 2nd and 3rd Claimants explained each investment project. She stated that they made cash investments with a view to earn interest and get back the principle amount after 5 years.

10. The witness stated that Mr Samuel Ngundo, the 2nd Respondent is the Chairman of 1st Respondent. She stated that the investments were made between 2017 and 2018 and that the 5 years period had already lapsed.

11. On cross-examination, confirmed that the Claimants made investments as hereunder;a.1st Claimant Kshs 1 millionb.2nd Claimant Kshs 2 millionc.3rd Claimant Kshs 1. 5 million

12. She stated that payments for the respective investments were paid through the bank (RTGs) and that they have filed evidence to this transaction.

13. She stated that the 2nd Claimant paid through a cheque. On cross-examination, the witness stated that there is a form from the 1st Respondent confirming the amounts and interest for each Claimant (document No 6) and admitted not having a filed receipt for the 2nd Claimant contributions.

14. For the 3rd Claimant, she stated he paid through EFT but had no document to confirm this payment . she stated the 3rd Claimant was given receipt but not in file.

15. During the hearing of the suit, the 1st Respondent’s Advocate, Ms Echom cross-examined the 1st Claimant.

16. The Claimant stated she was given a receipt for the investment payment but it is not filed in court. For the 2nd Claimant, the witness stated that payment was made by cheque but there is no copy of the cheque filed in court neither a copy of the receipt. The witness confirmed that the negotiated interest was 25%.

17. On re-examination, the witness confirmed filing a statement of account from the 1st Respondent. She stated that she has so far received one installment of the return on the investment but was expecting ten. No evidence was filed.

18. She stated that they filed the case in court in 2021 while the investment was done in 2017/2018 years.

19. In their Respondent’s submission dated 4th April 2024, the Respondent gave a background of the case and stated that the only issue for this court to determine is whether the Claimants are entitled to the prayer sought especially on refund on monies allegedly invested in 1st Respondent.

20. He stated that during cross-examination, the Claimants testified that all the three Claimants did not file documents showing the money transfers to the Respondent account nor receipts from the Respondent.

21. He states that no sufficient material was placed before this court to grant orders sought.

Analysis 22. We observe that the Claimants have filed evidence to prove they are Members of the 1st Respondent. We also observe that the Respondent in his Defence number 7(b) admits that the three Claimants had invested in the 1st Respondent’s investment programs.

23. Under paragraph 3 of the Respondent’s statement of response, the Respondent admits that the 3 Claimants were Members of the 1st Respondent. So, it is in no doubt that the Claimants were Members of the 1st Respondent and participated separately in the 1st Respondent investment programs.

24. A scrutiny of the Claimant’s document indicate that the Claimants were Members of the 1st Respondent and participated in the 1st Respondent investment programs as indicated in the statement of claim and the court proceedings.

25. The 3 Claimants have filed separate applications forms for their respective investment programs as indicated in the statement of claim and the court proceedings.

26. The three Claimants have filed separate application forms for their respective investment programs with the 1st Respondent. This documentation has not been challenged by the Respondents save for the general denial vide the Respondent’s statement of response.

27. The 3rd Claimant has filed a share certificate as evidence of being a Member of the 1st Respondent.

28. Below is a summary of salient issue for the three Claimants.

Claimant 1: Evaline Wanjiru Kibuchi: 29. Claimant 1 claims to have invested Kshs 1M and paid through RTGs but has not attached any receipt to show the funds were received by the 1st Respondent.

Claimant 2: Barnabas Mutuku Musyoka 30. Mr Musoka claims that he made investment by cheque but had not filed copy of the cheque. He has filed a document purportedly from 1st Respondent indicating payment was by cheque.

Claimant 3: Richard Muriki Muriuki 31. Mr. Muriuki claims to have paid by EFT but filed no evidence that the funds went through to the 1st Respondent. No receipt was filed in court as an acknowledgement of the funds.

32. We also observe that the three agreements were executed as hereunder;a.Evaline Mutuku Musyoka’s application is dated 14th February 2018 and witnessed by the 1st Respondent on 10th June 2020 (page 21 of Claimant’s documents) for Kshs 1,000,000. b.Barnabas Mutuku Musyoka: the application was accepted by the 2nd Claimant on 22nd August 2017 and signed by 1st Respondent officials on 4th September 2017 and date stamped on 7th September 2017. It was also certified by a lawyer on 22nd August 2017. The invested amount is Kshs 2,000,000. c.Richard Murimi Muriuki: As per the witness statement dated 28th July 2021, Mr. MUriuki states that he made his application on 26th February 2018 for Kshs 1,000,000 for Dhahabu Investment and Kshs 500,000 in Ghala investment totaling Kshs 1,500,000. He has filed an application form duly signed by the Respondent.

Conclusion 33. We find that the 1st, 2nd and 3rd Claimants have filed agreement forms in support of their claims but none has filed receipts from the 1st Respondent acknowledging receipt. The issue of receipt was raised by the 1st Respondent advocate and the Claimants admitted having not filed such receipts.

34. The agreement forms for the three Claimants have been signed by officials of the 1st Respondent and accepted by the respective Claimants. The Respondent’s statement of response dated 24th September 2021, the Respondent in paragraph 7(b) is indirectly accepting that indeed there were investment agreements but takes issue with the 60 days notice to withdraw to enable the 1st Respondent reconcile the Claimant’s accounts.

35. As regards the 3rd Claimant, he claims to have paid his investment funds through EFT but filed no evidence to that effect. No receipt was filed as evidence from 1st Respondent on receipt of funds. The agreement form from the 3rd Claimant is however filed in court.

36. During the hearing, the 3rd Claimant was reported to have paid through EFT and stated that he had a receipt but not filed in court.

37. Though the Claimants have denied the 1st Respondent’s assertion 7(b) of the Defence, we note that this statement 7(b) by the 1st Respondent is an admission that the Claimants had invested with the 1st Respondent.

38. We also note that the 1st Respondent acknowledges receipt of the invested amounts and interest payout for the 1st Claimant as per document page 13 of the Claimant’s documents.

39. In view of the above observations,a.we enter judgement in favour of the Claimant against the Respondent as hereunder;i.1st Claimant: Evaline Wanjiru KibichuRefund of Kshs 1,956,250 plus interest at Tribunal rates from the date of filing.ii.2nd Claimant: Barnabas Mutuku Musyoka:Refund of Kshs 3,417,514 plus interest at the Tribunal’s rate from the date of filing.iii.3rd Claimant: Richard Murimi Muriuki:Refund of Kshs 3,300,000 plus interest at the Tribunal’s rate from the date of filing.b.Cost of the suit.

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 JonahMburu holding brief for Gachie Mwangi for the Claimants.Mwangi & Partners for the Respondent – No appearanceHon. J. Mwatsama - Deputy Chairperson Signed 29. 8.2024