[2024] KECPT 947 (KLR)

Gichira v Urithi Housing Co-operative Society Limited (Tribunal Case 82 (E049) of 2022) [2024] KECPT 947 (KLR) (Civ) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 947 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 82 (E049) of 2022

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

May 30, 2024

Between

Rose Waruguru Gichira

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

Judgement of The Tribunal 1. The Claim herein was brought to the Tribunal vide the Claimant’s Statement of Claim dated 8th February, 2022, filed on 28th February, 2022. The Claimant states that she is a member of the Respondent and that she entered into a Sale Agreement with the Respondent for purchase of Apartment number OTG HOUSE 104 erected on part of title number Mavoko Town Block 3/52732. That pursuant to the said Sale Agreement, the Claimant paid to the Respondent a total sum of Kshs. 1,600,000/= on diverse dates. That despite the Claimant having met all the conditions and obligations under the sale agreement, the Respondent has not fulfilled its obligation to deliver to the Claimant the said residential apartment. The Claimant sets forth the particulars of breach of the contract by the Respondent and avers that the contract is no longer capable of being completed and claims refund of the sum of Kshs. 1,600,000/= with interest on each installment at 1. 5% per month from that of payment until payment in full.

2. The Claimant also seeks costs of the suit. The Respondent opposed the Claimant’s Statement of Claim vide its Statement of Response dated 28th June, 2022, filed on 16th June, 2022. It its response, the Respondent admits being registered owner of Mavoko Town Block 3/52732 containing the project dubbed “Osten Terrace Gardens Apartment (OTG)” and states that the same is fully owned by the Respondent’s members who subscribed to the project, the Claimant included. Further, the Respondent’s members who subscribed to the project, the Claimant included. Further, the Respondent denies it its response that the Claimant made the claimed payments and puts the Claimant to proof of her allegations. The Respondent also denies any breach of contract on its part, stating that there are other circumstances or factors which determine the success of a project; specifically the collective activities of the group in terms of the speed of honoring the individual members obligation, time and ability that the Tribunal by an order issued on 27th, 2021 barring the Respondent from dealing with the property. That the project would have been delivered within 12 months from January 2019. Further, that the funds already paid by the member of the project including the Claimant were utilized in construction works, consultancy services, marketing and other related experiences as approved and authorized by the members including the Claimant in her sale agreement with the Respondent. That the case constitutes a dispute that can only be determined by a panel of Arbitrators with technical knowledge on building and construction.

3. The Claimant on 8/11/2022 filed a Reply to Statement of Response dated 12th July, 2022. Therein, she joins issue with the Respondent on the statement of Response and adds that for all her payments to the Respondent, she was issued with receipts and a Statement of Account confirming payment of upto Kshs. 1,600,000/=. That the orders issued in the Tribunal Case No. 55 of 2021 do not bar the Respondent from refunding the Claimant the purchase price, that the Claimant had completed her payments before the meetings of 17/11/2018 and 13/7/2019. That her money was for construction and or purchase of apartment unit OTG House number 164 as set out in the sake agreements and should not have been used for marketing and consulting. That there is no Arbitration clause in the agreement between the Claimant and the Respondent and that the suit is a straight forward interpretation of a contract and the Claimant’s right to refund.

Claimant’s Case. 4. At the hearing, the Claimant produced her Witness Statement and List of Documents in evidence. The List of Documents comprises the Claimant’s membership Share Certificate Number 6652, several payment receipts issued to her by the Respondent, her member statement Agreement for Sale, Demand Letter and Completion Notice dated 30/9/2021 with certificate of posting. The Claimant stated in her evidence that as a member of the Respondent, she was invited by one of the agents to invest in Terrace Gardens to purchase an apartment at a cost of Kshs. 1,600,000/=. That the sale agreement allowed her to pay the amount in partial instalments and by June, 2018 she had paid the full amount of Kshs. 1,600,000/=. That thereafter, it became obvious that the apartment was not being constructed when after several follow-up meetings. That do-date, the same has not been constructed. That she wishes to be refunded the sum of Kshs. 1,600,000/= with interest at 1. 5% per month. On cross-examination, the Claimant reiterated that she was invited by a sales agent called Joyce Mwangi who was based in Thika. That she paid membership fee and got a certificate from the Respondent. That she entered into agreement to purchase an apartment. That she was only shown the plans. That she visited the site in the year 2021 and saw only incomplete structures, there was no complete unit. That she was not shown her own apartment. That the Respondent has preached the agreement by failing to build the apartment. That the Respondent did not respond to the demand letter.

5. The Respondent did not call any Witness at the hearing. Both parties filed Written Submissions in support of their cases. Claimant filed written submissions dated 18. 9.2023 on 13. 12. 2023 and respondent filed written submissions dated 24. 11. 2023 on 13. 12. 2023.

Determination 6. We have considered the document filed by parties, the evidence adduced by the Claimant during the trial and are satisfied that indeed the Respondent entered into agreement with the Claimant wherein the Claimant agreed to pay the sum of Kshs. 1,600,000/= for an apartment which was to be constructed by the Respondent and that despite the Claimant’s payment of the full price of Kshs. 1,600,000/= the Respondent has failed to deliver up the apartment in terms of the agreement. We therefore find that the Respondent is in breach of the agreement for sale dated 16th June, 2018, entered into between the Claimant and itself. Consequently.We enter Judgement in favour of the Claimant against the Respondent in the sum of Kshs. 1,600,000/= with costs of suit and interest at Tribunal rates from the date of filing suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe Member Signed 30. 5.2024Hon. Fridah Lotuiya Member Signed 30. 5.2024Hon. Philip Gichuki Member Signed 30. 5.2024Hon. Michael Chesikaw Member Signed 30. 5.2024Hon. Paul Aol Member Signed 30. 5.2024Tribunal Clerk JonahEchon advocate holding brief for Mwangi advocate for the RespondentJames Jeroge& Company advocate for Claimant – no appearanceEchon advocate – we request for 30 days stay of execution.Tribunal orders30 days stay of execution granted.Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024