[2024] KECPT 1381 (KLR)

Kenya Union of Savings & Credit Co-operative Ltd v National Co-operative Housing Union Ltd (Tribunal Case 02 of 2010) [2024] KECPT 1381 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1381 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 02 of 2010

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

August 29, 2024

Between

Kenya Union of Savings & Credit Co-operative Ltd

Claimant

and

National Co-operative Housing Union Ltd

Respondent

Judgment

1. The claim herein was brought by the Claimant to the Tribunal vide the statement of claim dated 17th December 2009, filed on 6th January 2010 wherein the Claimant prays for:a.A declaration that the Respondents continued action is illegal.b.An order directing the Respondents to process the title deeds of the remaining 16 plots in the name of Claimant.c.Damages.d.Any other order that the Honourable court may deem fit.e.Cost of this claim.f.Interest on (c) and (e) above.

2. The Claimant states in the statement of claim that on or month of June 2002, the Claimant entered into partnership with the Respondent which deals in ideal Estate specifically buying land , subdividing it and subsequently selling the said land to members of the co-operative in Kenya; that under the partnership, the Claimant was obligated to pay for the plots that it had identified while the Respondent’s responsibility was to process tittle deeds to the said plots in the name of the Claimant; that the Claimant identified 28 plots in Mlolongo which the Respondent was selling at Kshs. 200,000/= each; that the Claimant deposited the sum of Kenya shillings 4,000,000 with the Respondent towards the purchase price and also enable the processing of title deeds of the plots; that the balance of the plots was to be paid immediately registration of all the 28 plots was effected in the name of the Claimant; that despite the Claimant depositing the KShs.4,000,000 towards the deposit of the purchase price and processing price of the tittle deeds to all the 28 plots, the Respondent has only processed tittle deeds for 12 plots; that the Respondent has failed, refused and/or neglected to process the tittle deeds for the 12 plots; that despite demand notice and notice of intention to sue being given, the Respondent has refused ,failed and/or neglected to make good the claimants claim.

3. The Respondent responded to the Claimant’s statement of claim vide the statement of defence dated 5th February 2010. Therein the Respondent denies that the Claimant paid the deposit sum of KShs4, 000,000 as dated under paragraph 8 of the statement of claim, and states that the land sum of KShs4,000,000 was in full payment for 20 plots; that the Claimant was in breach of its agreement for the payment of the 20 plots as it made erratic payment contrary to the agreement that the amount was to be paid lumpsum hence leading to the delay in processing the titles, that only 8 title deeds are being processed and that the Respondent has no control over the issuance of titles by a government urgency to which it has made all requisite payments and followed all procedures spelt out in law.In conclusion the Respondent denies that the Claimant is entitled to any of the reliefs sought and prays that the suit be dismissed with cost.

Claimant’s case 4. The matter proceeds to hearing on 14/11/2023 when the Claimant’s witness one Tabitha adduced evidence. The witness stated that she is a credit manager of the Claimant and adopted her witness statement dated 15th March 2023, filed on 16th March ,2023 as her evidence in chief. The witness also produced the Claimant’s list of documents filed on 30th March 2020 and marked the documents therein as Claimant’s exhibits 1-10 and the list of documents filed on 5th May 2010, the documents of which one marked as Claimant’s exhibits 11-12. In her written statement, the witness reiterates the contents of the statement of claim and adds that under the partnership between the Claimant and the Respondent, the Claimant was obligated to pay for the plots that it has identified, while the Respondent’s responsibility was to process title deeds to the said plots in the name of the Claimant; that despite deposit being paid the titles had not been received. The witness prayed that the titles be released and damages be paid.

5. On cross-examination, the witness stated that the Claimant was purchasing the plots on behalf of its members; that members were not dealing directly with the Respondent; that she would not have known if some members dealt directly with the Respondent; that though the negotiated plots were 28, the substantive purchase was of 20 plots. The witness admitted on matter cross-examination that some members chose to pay for their plots directly; that the titles received by the Claimant as at the date of hearing of the case was 17. The Respondent did not call any witness and had not filed written submissions by the time of writing this judgment. On 8th April 2024, the Claimant filed submissions dated 28th February 2024, accompanied by a list of authorities.

Analysis and determination 6. We have considered all the documents on record and the evidence adduced at the hearing; we have also considered the Claimant’s submissions and cited authorities. It is not in doubt that the Claimant and the Respondent agreed to partner as confirmed by Claimant’s exhibit 3 and subsequent correspondences listed in the Claimant’s list of documents. It is also not in dispute that in terms of the partnership between the Claimant and the Respondent, the Claimant was required to pay the purchase price while the Respondent had the duty of processing the titles to the purchased plots.From the record, it is clear to us that the partnership as indicated in the letter marked Claimant’s exhibit 3 was of a general nature stating the commitment as at the date of the said letter which unfortunately does not contain terms of engagement of the two parties; the letter did not set the terms of payment for the plots, hence it is not possible to tell from the said letter of the Claimant was supposed to pay full price per plot or the deposit first and the balance at a later date or on the occurrence of specific action on the part of the Respondent. The marks of Claimant’s exhibit 5 infer a situation in which the Respondent would confirm a reserved plot upon payment and proceed to process titles. That would explain why the titles were issued in stages rather than at one go. However, it is not difficulty explained by the Respondent why took many years to process the Claimant’s titles.

7. We are therefore convinced and we concur with the Respondent that whereas the Claimant reserved 28 plots at the commencement of its partnership with the Respondent, the 28 parcels were not actualized on account of various factors including non-payment and, in some cases, members opting to deal directly with the Respondent, case in point being that of Orau Pascal Paul.In the absence of a clear partnership agreement and noting that the Respondent kept the Claimant updated on availability of plots along the way, we are in no doubt that out of the 28 or so plots reserved by the Claimant, only 20 materialized and were paid for at the price of Kshs. 200,000 per plot.From the Tribunal record, the Respondent said to have delivered to the Claimant 19 out 20 titles which position was not denied or challenged by the Claimant.

Upshot 8. Judgment is entered in favour of Claimant against Respondent fee in the following terms;1. Claimant is entitled to 20 plots purchased from the Respondent on behalf of its members.2. The Respondent to release the title to the Claimant’s the remaining title(s) deed in respect to the 20 plots duly paid for within 30 days from the date of this judgment.3. Prayer c in the statement of claim fails for lack of proof.4. Costs of the claim granted to Claimant with interest at Tribunal rates form date of judgment until payment in full.

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 JonahShikola advocate for the ClaimantNo appearance for Ogolla Obello Advocate for RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024