Were v Urithi Housing Co-operative Savings and Credit Society [2023] KECPT 1070 (KLR)

Were v Urithi Housing Co-operative Savings and Credit Society (Tribunal Case 544/ E045 of 2021) [2023] KECPT 1070 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1070 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 544/ E045 of 2021

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

November 30, 2023

Between

Naman Ogalo Were

Claimant

and

Urithi Housing Co-operative Savings and Credit Society

Respondent

Judgment

1. The matter for determination is vide a Plaint dated 11/6/2021 on 6/12/2021. The Claimant’s claim against the Respondent is for Kshs. 1,600,00/= plus cost and interest. The Claimant avers to paid money to the Respondent on diverse occasions for payment of an off plan Joshe Apartment. The Claimant avers to be Member No. 16556 of the Respondent. The Claimant further states upon making payments, the house has never been completed nor delivered to him. The Respondent subsequently stopped responding to the Claimant’s emails and calls making it difficult for him to know status of the transaction which was never finalized. The Claimant prays for;a.Kshs. 1,600,000. 00/=b.Costs and interest.c.Any other reliefs this Tribunal deems fit to grant.The Claimant filed a List of Documents dated 11/6/2021, which are;1. Demand letter.2. Payment receipts.3. Email Correspondence.4. Agreement between the parties.

2. The Respondent filed a Statement of Defence dated 2/2/2022 filed on 21/2/2022. The Respondent denied the averments of Claimant. The Statement of Defence dated 2/2/2022 filed 21. 2.2022 contains mere denials.The matter came for hearing on 16/8/2023 with Claimant Witness 1 Naman Ogalo Were testifying and adopted his Witness Statement dated 11/6//2021 as his evidence in chief. He confirms he bought a plot for Kshs. 750,000/= and the Respondent insinuated they would construct houses for them and the Claimant deposited a further Kshs. 200,000/=. He cumulatively paid Kshs. 1,600,000/= and the house was incomplete.

3. On cross examination, the Claimant confirmed the agreement was for Kshs. 650,000/=. There was no agreement for Kshs. 1,600,000/= that he paid to the Respondent. He confirmed no one has received their house from Uriithi Sacco. The Receipt produced was for Mavoko/Town Block. Hen confirmed Joska is in Mavoko. The Respondent did not call any evidence to defend their Statement of Defence.

4. The Claimant filed their Written Submissions dated 3/10/2023 on 6/10/2023 and the Respondent filed their Written Submissions dated 4/10/2023 on 6/10/2023. Having considered the pleadings and evidence during trial as well as Written Submissions by parties, the matter for determination is on refund. The issues that are to be determined are;Issue one.Whether the Claimant paid Kshs. 1,600,000 to the Respondent?Issue two.What was the purpose for the Kshs. 1,600,000/=?

Issue one. Whether the Claimant paid Kshs. 1,600,000 to the Respondent? 5. This is not contested by the Respondent and all documents produced in evidence by the Claimant confirms the Respondent collected Kshs. 1,600,00/= from the Claimant.

Issue Two. What is the purpose for the Kshs. 1,600,000/=? 6. This is the question the Respondent failed to respondent to.

7. Why was the Claimant making the payment of Kshs. 1,600,000/= if not form purchase of plot and construction of the house.

8. The Respondent chose/elected not to call a witness and as such their Defence is nothing but mere denial?

Upshot. 9. As such we fund the Claimant indeed deposited Kshs. 1,600,000/= with the Respondent with no consideration, for the same. Judgement is entered in favor of Claimant against the Respondent for Kshs. 1,600,000/= plus costs and interest.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY 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. PAUL AOL MEMBER SIGNED 30. 11. 2023Tribunal Clerk JonahKatee advocate holding brief for Makori advocate for Claimant.Ms. Echon advocate holding brief for Mwangi advocate for the Respondent.Echon advocate : We pray for 30 days stay of executionKatee advocate – They can be granted 14 days.Tribunal order:30 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023