[2024] KECPT 1370 (KLR)
The tribunal found that the claimant had proved her case on a balance of probabilities. The evidence showed that the claimant paid Ksh.1,300,000 for a plot from the respondent, but neither received the property nor a refund. The respondent acknowledged the debt and attempted a partial refund, which failed. The...
Source-derived case information.
- Citation
- [2024] KECPT 1370 (KLR)
- Parties
- Applicant: Lilian Kagai; Respondent: Actionald Sacco Limited
- Court
- Cooperative Tribunal
- Jurisdiction
- Kenya
- Case Number
- Tribunal Case 377/E572 of 2023
- Procedural Posture
- Tribunal Claim / Judgment After Formal Proof; Interlocutory Judgment Previously Entered
- Outcome
- judgment for claimant; refund of purchase price with costs and interest; general damages denied
- Judges
- BM Kimemia, J. Mwatsama, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw, PO Aol
- Legal Topics
- Land Sale Disputes, Refund of Purchase Price, Breach of Contract, Cooperative Societies, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Kagai
Applicant
Actionald Sacco Limited
Respondent
Procedural Posture
Tribunal Claim / Judgment After Formal Proof; Interlocutory Judgment Previously Entered
Legal Issues
- 1 Whether the claimant is entitled to a refund of Ksh.1,300,000 for the failed land purchase from the respondent.
- 2 Whether the respondent breached the sale agreement by failing to transfer the suit property or refund the purchase price.
- 3 Whether the claimant is entitled to general damages.
Ratio Decidendi
The tribunal found that the claimant had proved her case on a balance of probabilities. The evidence showed that the claimant paid Ksh.1,300,000 for a plot from the respondent, but neither received the property nor a refund. The respondent acknowledged the debt and attempted a partial refund, which failed. The respondent did not file a defence or appear, and interlocutory judgment had already been entered. The tribunal held that the claimant was entitled to a refund of the purchase price with costs and interest, but not to general damages, as no special circumstances were demonstrated to warrant such an award.
Court Disposition
judgment for claimant; refund of purchase price with costs and interest; general damages denied
Orders
- Judgment entered in favour of the claimant against the respondent for Ksh.1,300,000 plus costs and interest.
- Prayer for general damages is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
Kagai v Actionald Sacco Limited (Tribunal Case 377/E572 of 2023) [2024] KECPT 1370 (KLR) (29 August 2024) (Judgment)
Neutral citation: [2024] KECPT 1370 (KLR)
Republic of Kenya
In the Cooperative Tribunal
Tribunal Case 377/E572 of 2023
BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
August 29, 2024
Between
Lilian Kagai
Claimant
and
Actionald Sacco Limited
Respondent
Judgment
Claimant Case 1. The claimant’s case is based on the following: Statement of claim dated 25th July 2023.
Witness statement dated 25th July 2023.
Claimant’s documents dated 27th July 2023.
Formal proof hearing on 15th April, 2024.
2. In the statement of Claim the Claimant states that she was a member of the Respondent from October 2009 and December 2020, MNO.20091. She avers that during this period, the Respondent was engaged in purchasing and selling land to the members.
3. The Claimant offered to purchase a plot from the Respondent at the Respondent’s Utawala plots. She avers that the Respondent was to carry out the sub-division of the land. She avers that in 2011 she jointly purchased one of the plots with another member, Jacob Millo (now deceased).
4. On 15th February 2011, the Claimant entered into a Sale Agreement with Jacob Millo for the purchase of the suit property that was registered in the name of the Respondent for Ksh. 1. 3 million. She avers that the property being sold was LR.No.13318/70. Price with interest which the Claimant accepted. She states that the offer of refund was communicated further on 20th May 2022.
5. She further states that she was asked for her bank details on 29th September 2022 to facilitate the refund of 1st installment of Ksh.300. 000. She states that on 3rd November 2022 she was issued with a cheque for Ksh.600,000 which ultimately became stale.
6. In her witness statement dated 25th July 2023 the Claimant further explains the sequence of events from 2009 when she joined the Respondent as a member to 2011 when she purchased plot from the Respondent. She further explains the steps she has taken to claim for a refund of Ksh.1. 3. million investment for no avail. She prays for judgement in her favour for Ksh.1. 3 million or in the alternative the suit plot.
7. The Claimant has attached various documents to support her case, among them the following:a.Demand letters dated 24th March 2023 and 30th June 2023 from the advocate.b.A letter from the Respondent dated 20th May 2022 acknowledging owing the Claimant money.c.Sale Agreement for LR.NO.13418/70 between Jacob Odhiambo Millo and the Claimant and email correspondences between the Claimant and Jacob Millo.
8. When the matter came for formal proof hearing on 15th April, 2024, it is important to note that Interlocutory Judgement had been entered on 30th January, 2024.
Defendant’s Case. 9. The Respondent has not filed any documents in Defence of the case. On 15th April, 2024 when the matter came for formal proof hearing the Respondent was not present. An Interlocutory Judgement had already been given on 30th January 2024.
Analysis 10. The Claimant has adequately presented here case and filed sufficient evidence to prove her claim. She has filed evidence showing that the Respondents admits her membership and subsequent purchase of the suit plot.
11. We observe that the case is undefended despite evidence that the Respondent was aware of the case. It is also noted that an Interlocutory Judgement was issued on 30th January 2024. It is also observed that the Respondent made effort to do partial refund of Ksh. 300,000/= to the Claimant but the cheque did not materialize due to inadequate funds.
Conclusion 12. With foregoing observation, we enter Judgement in favour of the Claimant against the Respondent as hereunder:1. Judgement is entered in favour of the Claimant against the Respondent for Ksh.1,300,000 plus cost and interest.2. Prayer for general damages fails.
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 JonahOgolla advocate for the ClaimantActionald Sacco LTD - No appearanceHon. J. Mwatsama Deputy Chairperson Signed 29. 8.2024.