https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/292

Gathara v Stima Investment Co-operative Society Ltd (Tribunal Case E379 of 2024) [2026] KECOPT 292 (KLR) (Civ) (6 July 2026) (Judgment) Neutral citation: [2026] KECOPT 292 (KLR) Republic of Kenya In the Cooperative Tribunal Civil Tribunal Case E379 of 2024 J Mwatsama, Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members July 6, 2026 Between Lilian Wambui Gathara Claimant and Stima Investment Co-operative Society Ltd Respondent Judgment 1.The matter for determination is Statement of Claim dated 13/5/2024. The Claimant states she was a member of Respondent Society being member no. 5108046. She expressed interest in purchasing plots dubbed “Bahati plains” the size of 100x100 ¼ an acre at Kshs.270,000.00/=. The Claimant purchased 2 plots and made payment of Kshs. 540,000.00/= on 7th August 2015. 2.Claimant avers she did not receive the sale agreement despite follow up with the Society. She was later informed vide email on 17/10/2018 being informed the Claimant was not successful for ballot and the would be reallocated. After numerous correspondence she was informed her plot number 256 and 257 may have been re-allocated and sold to third party. 3.The Claimant claim is thus for:a.A refund of Kshs. 547,000.00/= being the purchase price paid by the Claimant plus interest at market rateb.Damages for fraudc.Damages for breach of contractd.Damages for mental anguishe.In the alternative to (a) above, the Respondent be compelled to issue the Claimant the exact parcels of land being plot numbers 256 and 257 as identified by the Claimant and allotted to her by the Respondent.f.Interest at the court rates on (a) above from the date the Claimant paid the purchase price in fullg.Costs of this suit andh.Any other relief the Tribunal deems fit to grant.Claimant filed List of Documents dated 13/5/2024 which included:a.Member Statementb.An invitation to purchase the Bahati land as sent via the Claimant’s emailc.A bundle of the payment receiptsd.A copy of email of excerpts of various dates being follow up for the delay in allotment of the titles.e.A copy of the demand letter dated 17th January 2024 received and stamped by the Respondent; to support her claim and Witness Statement dated 13th May 2024.During hearing the Claimant relied on the Witness Statement dated 13/5/2024 as her evidence in chief and produced the List of documents dated 13/5/2024 produced as Claimant’s Exh.1-5. 4.During cross examination, she confirmed she chose the plot number 256 and 257 from a hard copy chart at the Respondent Society Office. She confirmed she was informed the plots were not availed 2 years after the said purchase and that Respondent ignored her. She confirmed she was offered alternative land but the land required her to top up, money she did not have and could therefore not take it up. Her demand is for a refund of the current market price of the land she purchased.Claimant states it is now 10 years since she purchased the property but nothing to show for it. She would like her refund. 5.The Respondent filed Statement of Defence dated 5th February 2025 admitting the Claimant was their member. Respondent denied all other claims made by Claimant in the claim. Respondent Society denies breach of obligation as alleged under paragraph 17 Statement of Claim. Respondent aver the sale agreement were issued depending on the order of the Applicants and they are willing to give Claimant alternative land. 6.The Respondent deny any fraud on their end as the Respondent was legal and beneficial owner of Bahati plains. Respondent Society restate they offered to repay Claimant her money, that is, Kshs. 540,000.00/= which she declined as she wanted specific performance. Society state the Claimant was informed promptly of the ballot allocation of plot 256 and 257 not successful. Respondent filed List of Documents dated 25/2/2025 which include:1.Member Statement dated 6th February 20252.Email correspondence between the Claimant and the Respondent3.Copies of Title Deeds to various purchasersDuring the Respondent’s case, the witness DW1 - Damaris Mutile the Legal Officer of Respondent Society adopted her Witness Statement dated 25th February 2025 as her evidence in chief. She produced the documents in the Respondent’s List of Document dated 25th February 2025 and the same was marked Respondent’s Exh.1-3. 7.During cross examination and clarification sought by the Tribunal members, the Respondent witness stated there can be over subscription in a purchase of project. Selection of plots was not final and payment would only follow after balloting was done.The Claimant was not successful. Payment was to be paid once parties receive agreement for sale.The Respondent witness confirmed that communication to Claimant about her being unsuccessful was done 2 years after the balloting. Balloting which ordinarily takes two weeks. 8.Matter being heard to its conclusion the Tribunal gives its judgment. Considering the evidence before the Tribunal the pleadings and evidence of parties of case the issues for determination is one. Issue one: Whether the Claimant is entitled to her refund of Kshs. 540,000.00/=?Claimant gave evidence of her payment of Kshs.540,000.00/= towards purchase of plots dubbed Bahati Plains, plot 256 and 257.The Respondent confirm receipt of funds and confirm the Claimant did indeed choose the plots 256 and 257. What is not understood even after explanation by the Respondent witness is;1.Why the Claimant did not get the plots she chose?2.Why the communication of her unsuccessful bid came two years after she paid for the plot?We are at pains to understand why a society would have a chart with plot numbers, invite members to choose the plots they want and later do not deliver because of oversubscription. 9.No sufficient reason is given by Respondent Society for this anomaly. The issue of oversubscription should not arise. If indeed there was oversubscription why did the Society choose or state there was balloting done thereafter?These two systems are distinct and there is no way they can be used simultaneously. It is either the direct selection of plots or balloting. We are not convinced that for the same project the Respondent Society used both. This we may as well conclude was an afterthought. 10.The Respondent Society confirmed there was no invitation to Claimant for the ballot process of their project dubbed “Bahati Plains”. In the instant case there was a contract between the parties. There was an open invitation to treat from the Respondent Society, the land being sold “Bahati Plains”. The Claimant accepted responded to the invitation. An offer was thereafter made when the Claimant went to Respondent office chose plot number 256 and 257 and paid for the same. This was a clear offer made; accepted by the Claimant and consideration paid.There was intention agreement between parties to be legally binding. In this case, by conduct of Claimant paying and Respondent accepting cash. 11.What more can be said about this?The Respondent claim of the Claimant not being part of the allocated plots holds no water more so, when the same was communicated two years down the payment.Blacks Law Dictionary defines a contract as follows:“An agreement between 2 or more parties creating obligations that are enforceable or otherwise recognizable at law”.We look to the case of G. Percy Trentham Ltd -vs- Archital Luxfer Ltd [1993] 1 Lloyds Rep 25 Lord Steyn stated as follows:“…it is important to consider briefly the approach to be adopted to the issue of contract formation… It seems to me that four matters are of importance.The first is that; …law generally adopts an objective theory of contract formation. That means that in practice over law generally ignores the subjective expectations and the unexpressed reservatory of the parties. Instead, the governing criteria is the reasonable expectations of honest men…, that means that the yardstick is the reasonable expectations of sensible businessmen.Secondly, it is true that the coincidence of offer and acceptance will in the vast majority of cases represent the mechanism contract formation. It is so in the case of a contract alleged to have been made by an exchange of correspondence. But it is not necessary so in the case of a contract alleged to have come into existence during and as a result of performance”.We also are in agreement with the Court of Appeal in the case of William Muthee Muthami -vs- Bank of Barode [2014] eKLR where it was observed:“…in the law of contract, the aggrieved party to an agreement must in addition, prove that there was offer, acceptance and consideration. It is only when those three elements are available that an innocent party can bring a claim against the party in breach…”. 12.With the above, we find there was indeed a contract between the Claimant and Respondent. Respondent owes the Claimant the Kshs. 540,000.00/= deposited for purchase of land the Respondent has failed to deliver the land. This means there is breach of contract. The breach has caused the Claimant inconvenience having waited for ten years to get a refund. Despite the inconvenience caused we are not convinced the Claimant is entitled to;a.Damages for fraud by Respondent as no evidence was adduced of the Respondent fraud if at all.b.Damages for mental anguish. The Claimant failed to show/demonstrate how the breach of conduct has damaged her mental health. 13.After all is said and done, the Tribunal finds there was breach of contract and the Respondent owes the Claimant the purchase price of Kshs. 540,00.00/=. Because of the Respondent Society conduct which the Tribunal frown. Upon how they treat its members and lack of communication the Respondent Society is to refund the Kshs.540,000.00/= from date of receipt by the Claimant. UpshotJudgment is hereby entered in favour of Claimant against Respondent to Kshs.540,000.00/= plus cost and interest at court rate from 7th August 2015 until payment in full.Prayer (b), (c) and (d) fails. JUDGMENT DATED AND DELIVERED VIRTUALLYAT NAIROBI THIS 6TH DAY OF JULY, 2026.HON. J. MWATSAMA CHAIRPERSON SIGNED 6/7/2026Hon. B. Sawe Member Signed 6/7/2026Hon. Fridah Lotuiya Member Signed 6/7/2026Hon. M. Chesikaw Member Signed 6/7/2026Hon. P. Aol Member Signed 6/7/2026Court Assistant – MutaiWandera Advocate;We pray for 30 days stay of execution.Aryana Advocate;No objectionTribunal order;30 days stay of execution granted.Hon. J. Mwatsama ChairpersonSigned 6/7/2026