[2023] KECPT 904 (KLR)

Kamau & another v Uriithi Housing Cooperative Society (Tribunal Case 543/ E341 of 2021) [2023] KECPT 904 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 904 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 543/ E341 of 2021

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

September 21, 2023

Between

Joseph Wayoro Kamau

1st Claimant

Joseph Wanyoro Kamau (Suing on Behalf of Mukuria Self Help Group)

2nd Claimant

and

Uriithi Housing Cooperative Society

Respondent

Ruling

1. The present Claim is Vide a Statement of Claim dated 15/11/2021 and filed on 03/12/2021. It was accompanied with a Verifying Affidavit dated 15/11/2021 filed on 3/12/2021 and a Witness Statement and a List of Documents both dated 15/11/2021 and filed on 03/12/2021.

2. The Claim was undefended resulting to the Claimant requesting for Judgment under order 10 rule 1 read together with order 10 rule 4(2) of the Civil Procedure Rules. The Request for Judgement was dated 18/03/2022 and filed on 29/06/2022.

3. Interlocutory Judgement was entered by the Tribunal in favor of the Claimant against the Respondent on 15/8/2022. The Matter was then directed for formal proof on 16/2/2023.

Claimant’s Case. 4. The Claimant called Claimant Witness 1 who was the Claimant himself Joseph Wanyoro Kamau. He adopted his Witness Statement dated 15/11/2021 as his Evidence in Chief. He also produced the List of Documents dated 15/11/2021 as exhibit (exhibit 1-15).

5. He claimed that he paid the following;1. On 20/8/14 Kshs. 1000 as registration fees; the cash was received as evidenced in Receipt 131. 2.On 20/8/13 Kshs. 100,000/= as premium shares; the same received under Receipt 132. 3.On 15/01/2016 Kshs. 100,000/= for Almasi Investment shares, proved by issuance of share certificate 189. 4.On 15/01/2017 Kshs 2,200,000/= for Dhahabu Investment; the same received under receipt 3097. 5.30/1/2017, Kshs. 20,000 for Dhahabu Investment, the same received under receipt 3098. 6.30/1/2017, Kshs. 180,000 for Dhahabu Investment, the same received under receipt 3099. 7.27/11/2017 Mukuria Self Help group paid Kshs. 200,000/= for Almasi Investment, the same received under receipt 3545. 8.10/5/2016, Kshs. 50,000 for the Embu plot, the same received under receipt 63693.

6. He Claimed that in 2021, the Respondent only paid Kshs. 473,350/=. He avers that all the amount plus the interest expected totals to Kshs. 6,222,081. 44/=

Analysis And Determination 7. It is trite law that he who alleges must prove, as was expounded in Wambui Niritu v Joseph Kiprono & Another. The Evidence Act in section 107 indicates that whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. It was the Claimant’s responsibility to discharge that burden of proof.

8. The Claimant has gone ahead and proved all the payments done through producing receipts indicating the existing products by the Respondent and the interest to be accrued on the investment.

9. It is therefore the Tribunal’s opinion and view that the Claimant has indeed discharged the burden on a balance of probabilities as required.

Determination. 10. We therefore find in favor of the Claimant against the Respondent for Kshs. 6,222,081. 44/- plus cost and interest of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 21. 9.2023Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023Hon. Beatrice Sawe Member Signed 21. 9.2023Hon. Fridah Lotuiya Member Signed 21. 9.2023Hon. Philip Gichuki Member Signed 21. 9.2023Hon. Michael Chesikaw Member Signed 21. 9.2023Hon. Paul Aol Member Signed 21. 9.2023Tribunal Clerk JemimahNo appearance by parties.Judgment delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023