[2024] KECPT 219 (KLR)

Kingori v Urithi Housing Co-operative Society Limited (Tribunal Case 471 of 2020) [2024] KECPT 219 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 219 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 471 of 2020

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

March 7, 2024

Between

James Kiruhi Kingori

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The Claimant’s case is contained in the Statement of Claim dated 10/11/2020, Claimant’s Witness Statement dated 10/11/2020, Claimant’s Documents dated 10/11/2020, hearings held on 17/8/2023 and Claimants Written Submissions dated 7/11/23.

2. In his Statement of Claim, the Claimant states that he joined the Respondent in December 2016 and got a shareholder certificate marked JKKI and membership No. UHCSL/19609. He was asked by the Respondent to deposit Kshs 514,000/= for purchase offered in Ole Tetesi Kajiado.He avers that in December 2016, he entered into a 4-year agri-business contract.This contract was signed by the Claimant and the Respondents Chairman and Treasurer and witnessed by the Respondent’s Administrative Assistant.He invested Kshs. 300,000/= for one share of the fish pond.The Respondent was expected to do the following; Install green house,

Construct fish pond with a capacity of 1,200 fish,

Stock fish for the 1st and 2nd seasons.

Provide feeds to the fish for 1st and 2nd season.

Offer veterinary support,

Insure the project,

Provide farm management service.

The Respondent was also expected to do the following; Provide land for the project,

Ensure adequate water supply,

Construct site house,

Pay the Claimant Kshs. 40,000/= per month for the 1st year, 2nd year pay Kshs 30,000/= per month and Kshs 20,000 per month for the subsequent years.

3. The payments were not forthcoming but the Respondent chairman wrote to the Claimant promising refund of the initial Kshs 300,000/=. Later the respondent closed office in Kiambu and Rongai.The Claimant avers that he suffered financial loss in this transaction.In his Witness Statement, the Claimant restates what is contained in his Statement of Claim in his list of documents dated 10/11/2020, the Claimant has filed a share certificate as proof of membership to the Respondent.He has also filed his membership card in the Respondent Cooperative.He has filed a Bank Cheque of Kshs. 514,000/= to the Respondent from himself. He has also filed a ‘Contracted Investor Management Agreement’ dated 14/12/2016 between himself as Contracted Investor and the Respondent signed by the Respondent Chairman, Secretary and Treasurer. The Contract is Witnessed by the Administrative Assistant of the Respondent.He has also filed a Cheque Bank requisition form as a letter from the Respondent confirming that they owe the Claimant Kshs 300,000/=The Respondent has also acknowledged through a payment receipt filed by the Claimant for Kshs 300,000/=

4. During the hearing in 17/8/2023, the Claimant adopted his Statement of Claim as and Documents as his Evidence -in- Chief.He stated that he only received Kshs. 33,000 from the Respondent and since then no other money has been received. He prayed the court to consider his prayers as per the Statement of Claim.

5. On Cross Examination, the Claimant confirmed that he has only produced evidence of Kshs. 300,000/= and not Kshs 548,000/= as per his claim.On re-examination, the Claimant stated that he prays for the aquaculture project money to be refunded plus costs to the case.

6. In their Written Submissions dated 10/11/2020, the Claimant has provided a background of the case and requests this Court to establish whether the Respondent breached the Contract dated 14/12/2016. He explained that Kshs. 300,000/= out of the Kshs 514,000/= invested was to go for Agriculture project. The Claimant argues that the Respondent withheld earnings as provided for in the Contract/Agreement as tabulated in the Statement of Claim.

Respondent’s Case. 7. The Respondent’s case is from the Statement of Defence dated 17/12/2020, the Respondent’s Witness Statement dated 13/9/2021, Respondent’s List of Document dated 17/12/2020 and hearings held 17/8 2023. In their Statement of Defence, the Respondent admits that the Claimant was a member of the Respondent.The Respondent denies the Claimant statement regarding the Kshs 514,000/=, and Kshs 300,000/=.The Respondent denies receiving money from the Claimant for the Ole Tetesi Kajiado.The Respondent also states that this court lacks Jurisdiction on the matter.

8. In the Respondent’s Witness Statement dated 13/9/2021, the Respondent confirms that the Claimant is a member no. 19609. The Respondent confirms that the Claimant expressed interest in the aquaculture project but denies receiving money from the Claimant for the Aquaculture project in kajiado.The Respondent avers that their by-laws do not provide for refund of shares, rather provides for transfer.The Respondent has not filed any document in this matter.During the hearing on 17/8/2023, the Respondent advocate cross-examined the Claimant regarding the Kshs. 300,000/= aquaculture project and the Kshs. 574,000/= as her Statement of Claim.The Claimant confirmed that no evidence was filed for the Kshs. 548,000/= as contained in the Statement of Claim.

9. In their Written Submissions dated 6/11/2023, the Respondent confirm that the Claimant is indeed a member of the Respondent member No. 19609 and that indeed the Claimant expressed interest in the aquaculture project.This confirm that invested money in the project was entitled to annual returns. The Respondent denies receiving any money from the Claimant for the aquaculture project in Kajiado.

Analysis. 10. From the Document filed in this court, the Statement of Claim, the Claimant Witness Statement and the hearing, the Claimant has adequately prosecuted his case.He has produced evidence by way of share certificate from the Respondent membership card, Bank cheque for Kshs. 514,000/= to the Respondent and the ‘Contracted investor Management Agreement’. The above mentioned documents have indeed proved that the Claimant was a member of the Respondent and further participated as an investor in the Respondent’s project in Kajiado.The Contracted Investor Management Agreement is detailed on the role of each party. It is the basis of the Claimant’s case.The Respondent does not deny that the Claimant is its member but denies that the Claimant invested in the Aquaculture project. The Respondents asserts that its by-laws do not provide for refund of shares, rather the by-laws provide for transfer of the same.

Conclusion. 11. We note that the Claimant has produced adequate evidence in form of Statement of Claim, Witness Statement and relevant documents to prosecute his case.We also note that the Claimant during the hearing of the matter stated that only Kshs. 33,000/= has been refunded by the Respondent.We also note that the Respondent admits that the Claimant is a member.

12. The Respondent does not deny receiving Kshs. 548,000/= from the Claimant but denies that the money was for the aquaculture projects. The Respondent avers that the Claimant was owed shares as per their by-laws were not refundable.It is our position that the Claimant adequately prosecuted his case on a balance of probability and therefore enter judgement in favor of the Claimant against the Respondent for:a.A refund of Kshs. 300,000/=b.As regards Claimant’s prayer (a) on lost earnings, we note that the Claimant has tabulated the losses based on agreed returns as contained in the Contract Agreement between the Claimant and the Respondent.The Agreement provided for returns on investment as below:Year one Kshs. 40,000/= per month =Kshs. 480,000/=Year two Kshs. 30,000/= per month =Kshs. 360,000/=Year three Kshs. 20,000/= per month = Kshs. 240,000/=Total expected earnings as for the contract agreement would have been Kshs. 1,080,000/=(year 1 +year 2+year 3 earnings)c.Prayers for General Damages fails.d.Plus costs and interest in the claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024Hon. Beatrice Sawe Member Signed 7. 3. 2024Hon. Fridah Lotuiya Member signed 7. 3.2024Hon. Philip Gichuki Member Signed 7. 3.2024Hon. Michael Chesikaw Member Signed 7. 3.2024Hon. Paul Aol Member Signed 7. 3.2024Tribunal Clerk JemimahEchon holding brief for Mwangi for RespondentNo appearance for ClaimantHon. Beatrice Kimemia Chairperson Signed 7. 3.2024Echon - I pray for 30 days stay of execution.Order- 30 days stay of execution granted.Hon. Beatrice Kimemia Chairperson Signed 7. 3.2024