[2024] KECPT 1172 (KLR)

Kiarie v Urithi Housing Cooperative Society Limited (Tribunal Case 527A of 2018) [2024] KECPT 1172 (KLR) (25 July 2024) (Judgment)

Neutral citation: [2024] KECPT 1172 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 527A of 2018

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

July 25, 2024

Between

Francis Kanyi Kiarie

Claimant

and

Urithi Housing Cooperative Society Limited

Respondent

Judgment

1. Matter for determination is Statement of Claim dated 25. 10. 2018filed on 6. 11. 2018. Claimant claims to be a member of Respondent Cooperative Society under membership number UHCSL 12870. He states on November 2017 the respondent sold to Claimant plot number 48 measuring 1/8 acre on land Reference number 117 Kiambu that is, Ruiru Ridges Estate at a cost of Kshs. 1,500,000/=.Claimant executed a sale agreement prepared by Respondent and did not receive a copy of the Agreement despite having paid the purchase price and acknowledge by the Respondent.The Respondent has failed to honour the Agreement and has neither refunded the monies on given the Claimant vacant possession of the land in question.The Claimant claims for:a.That an order be issued for the refund and release of Kenya shillings one million three hundred and fifty thousand(1,350,000/= to the claimant.b.That costs and interests of this suit be provided for.c.Any other relief that the Tribunal deems fit and reasonable.

2. Claimant filed List of Witnesses and his witness statement on 8. 11. 2018 as well as Claimant’s Supporting Documents dated 25. 10. 2018 which include:a.Letter dated 9th May, 2018 from the Claimant to Respondent.b.Refund request form dated 10th May, 2018. c.Payment receipt dated 16th March, 2018. d.Letter dated 10th August, 2018 from the Claimant’s advocates to the Respondent.e.Any other relevant document.

3. The Respondent filed a Statement of Defence dated 5. 12. 2018 filed on 10. 12. 2018. The Respondent denied the Claimant and stated while it is true Respondent agreed to sell a plot to the Claimant it was to be transferred to her upon complying with laid out terms as contained in Sale Agreement.The Respondent stated the Claimant is yet to clear the conveyancing fees to enable Respondent to transfer the property to her. The Respondent claimed they are in the process of subdivision and Claimant is entitled to a plot after the process is over.Further Respondent averred an issue of refund will not occur since amount was used to pay a deposit to the owners of the land as well as surveyors expenses as such the money is already sunk in the project.They prayed for the suit to be dismissed with costs.Respondent filed List of Documents dated 28. 8.2020 filed on 7. 9.2020 which included:a.Extract of society’s By-law.b.Any other documents that the Respondent may produce during the hearing.

4. The Claimant further filed a reply to Defence dated 28. 2.2020 and stated despite paying the full price of land the alleged issue of conveyancing fees has never been part of the Agreement and reiterated the Respondent ought to refund the monies as the Respondent is in breach of contract.

5. Matter came up for hearing on 18. 3.2021 where Claimant testified CW1- giving sworn evidence adopted his witness statement filed on 6. 11. 2018 as his Evidence- in – chief. He confirmed the terms of the Agreement that within 90 days the Respondent ought to have made the subdivision and allocated plots.He confirmed that he paid Kshs. 1,350,000/= and purchase price was to be Kshs. 1,500,000/=.Despite following up the Claimant avers the Respondent have not refunded and or given him land.During cross examination he confirmed he was a member. He said he did not have a copy of the Agreement that he signed.He stated payment would not have been complete for land he was yet to be shown. The Claimant confirmed the Respondent did not call for a meeting for member of Ruiru Ridge to show beacons or subdivisions.Claimant confirmed he made payment via RTGs though he did not have evidence to show. He stated if he is shown the plot he is ready to pay conveyancing fee of any statutory payment.

6. The Claimant closed their case and Respondent opted not to call any witness for this case parties were directed to file written submission and Claimant filed their written submissions dated 10. 1.2023 on 19. 1.2024 and Respondent filed their written submissions dated 9. 6.2023 on 11. 12. 2023. Upon considering the pleadings, this evidence adduced in court and the written submissions by parties the issues for determination are:Issue one Who among the Claimant and Respondent is in default of the Agreement?Issue two Whether Claimant is entitled for a refund?

Issue one Is there a defaulting party between Claimant and Respondent? 7. The Claimant avers having entered into an Agreement with the Respondent however despite him stating he signed the Agreement it was never delivered/forwarded to him.The Respondent in their Defence paragraph 3 is acknowledge the Claimant paid however, he is yet to clear the conveyancing fees and deposit done by Claimant is sum in the project.This confirms that indeed the Claimant paid up the amount of Kshs. 1,300,000/=. The default as Respondent ‘s claim was caused by the Claimant because Claimant did not complete payment.However, the Claimant avers despite having paid Kshs. 1,300,000/= out of the Kshs. 1,500,000/= he did not make further payment because there was no assurance from Respondent of the project or progress report made.

8. The Claimant had paid more than half the amount and as such since Respondent had not communicated ceased to pay the balance of Kshs. 200,000/=.The question to be answered then is which of the parties was in breach?We find in our view the Respondent ought to have done more to confirm or assure the Claimant of the project. There was no assurance from the Respondent end which made the Claimant not complete the payment.The Claimant having paid more than ¾ of the purchase price we find without commitment from Respondent it would have not been wise to pay the full amount despite the claims by Respondent that without payment of balance of Kshs. 200,000/= the conveyancing fees the Respondent was unable to transfer the property.The Respondent have not shown any evidence that indeed the land was subdivided or demanded the balance from Claimant and as a result of Claimant’s failure could not give him the land.They (Respondent) have not offered or shown any progress of the said project indeed we find it is the Respondent was the one who breached the contract .

Issue two Whether Claimant is entitled for a refund? 9. Indeed, the Respondent having impliedly breached the contract by not having the plot allocated to the Claimant.The Claimant prays for a refund as it is the Respondent did not progress with the project. The Respondent did not offer the Claimant any recourse but would like Claimant to complete payment for a project whose end is not known.Respondent have not denied receiving the cash from Claimant without much further ado.As such we find in favour of Claimant against Respondent for Kshs. 1,300,000/= plus cost and interest in the claim at Tribunal rates.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 25TH DAY OF JULY, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 25. 7.2024HON. BEATRICE SAWE MEMBER SIGNED 25. 7.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 25. 7.2024HON. PHILIP GICHUKI MEMBER SIGNED 25. 7.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 25. 7.2024HON. PAUL AOL MEMBER SIGNED 25. 7.2024Tribunal Clerk JemimahNo appearance by the parties.HON. B. KIMEMIA CHAIRPERSON SIGNED 25. 7.2024