[2021] KECPT 618 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CLAIM CASE NO. 5 OF 2019

MACHAKOS MWALIMU HOUSING

CO-OPERATIVE SOCIETY LIMITED.....................................CLAIMANT

VERSUS

FRANCO MUNENE....................................................................RESPONDENT

JUDGMENT

This is our final Judgment in the matter. Default judgment was entered in favour of the Claimant on 8. 1.2019. The matter came up for formal proof on 23. 9.2020 whereupon the Claimant called one witness (Joseph Muturi Gicheha)to testify. During his testimony CW-1 adopted his witness statement dated 31. 12. 2018. He also produced his list and bundle of documents dated 31. 12. 2018.

The gist of the Claimant’s case is that on diverse dates during his tenure as one of its officials, the Respondent misappropriated funds belonging to its members amounting to Kshs.30,599,450/=. That the said monies were deposits meant to be invested in the purchase of a parcel of land which would later be shared out amongst its members.

That the actions of the Respondent were the subject of an inspection by the District Co-operative Officer, Machakos who prepared an inspection report dated 27. 7.2015. That the said report found that the Respondent had failed to account for the said monies. That the report documents the Respondent having admitted to receiving and failing to account for the said Kshs.30,599,450/=. That upon the said admission, the Respondent executed a deed of settlement dated 3. 2.2016 whereupon he undertook to settle the said amount in full.

That as part of partial performance of the terms of the deed of settlement, the Respondent surrendered his interest in property known as L.R.No. Kajiado/Kaputilel North/72777 measuring 4. 05Ha and valued at Kshs.6,000,000/=. That this left a balance of Kshs.24,599, 450/=due and outstanding.

That further, the Respondent had pledged in the deed of settlement to transfer to the Claimant properties, known as Kaagari/Kanja/5123 and L.R. Mbeti /Kiamuringa/2207.

Respondent’s Case

Despite being served with pleadings and hearing dates, the Respondent neither entered appearance nor appeared in court to defend himself.

Issues for determination

We have framed the following issues for determination:

a. Whether the Claimant is entitled to recover a sum of Kshs.24,599,450/= from the Respondent;

b. Who should meet the costs of the claim?

Recovery of Kshs. 24,599,450/=

As we have underscored above, there exist interlocutory judgment in the matter. Our role at this juncture is to ascertain whether the evidence tendered and the documents produced support the claim.

From the testimony of CW-1, it is apparent that the Respondent was a long serving member of the Claimant. He also held several portfolios until his exist in the year, 2015.

We have perused document No. 2 of the Claimant’s list and bundle of documents dated 23. 7.2015. It is a deed of settlement dated 3. 2.2016, the said deed of settlement has been entered into between the Claimant and the Respondent. Paragraph Cof the said deed states thus:

“ It has emerged that despite receiving the society’s funds as aforementioned, Munene has failed to deliver to the society the land allegedly purchased with the funds or otherwise account for funds so received....”

Paragraph D goes on to provide thus:

“ In the meantime, by his own admission to the members through the Chairman’s reports which he presented during the Society’s Annual General Meeting on 25. 7.2015, in the presence of the District Co-operative Officer, Munene has admitted having received Kshs.30,599,450/= for which he undertook to reimburse in cash or make compensation in kind by availing to the society alternative land of equal value...”

At paragraph 1 of the deed, the Respondent undertook to reimburse the said Kshs.30,599,450/= as follows:

a. Within 7 days of signing of the deed, deliver to the Claimant the original title documents for properties L. R. No.Kaagari/Kanja/5123 and L.R.No. beti/Kiamuringa/2207;

b. Within 30 days of signing of the Agreement, deliver to the society the following documents ;

(i) Duly signed transfer forms;

(ii) A copy of pin certificate;

(iii) A copy of Identity card;

(iv) Coloured passport size photographs;

(v) LCB consent to transfer.

We note that the deed is duly executed at pages 3 and 4 thereof

Upon appreciation of the deed of settlement, we deduce the following:

a. That the Respondent admitted owing the Claimant a sum of Kshs. 30,599,450/=;

b. That upon the said admission the Respondent committed to transfer to the Claimant the following properties;

(a) Kaagari/Kanja/5123;

(b) Mbeti /Kiamuringa/2207; and

(c) Kajiado/Kaputiel North/72,777.

From the material before us, it is only apparent that the Respondent has only transferred property L.R.No. Kajiado/Kaputiei North/72777 valued at Kshs.6,000,000/=. He has not transferred the other two properties.

What we decipher therefore is that the Claimant has proved to the requisite standard the fact that the Respondent still owes it the sum of Kshs.24,599,450/=. The Respondent is thus duty bound to refund the said monies or in the alternative transfer the suit properties to the Claimant.

Conclusion

The upshot of the foregoing is that we enter judgment in favour of the Claimant and as against the Respondent for Kshs.24,599,450/= plus costs and interest at court rates. The Respondent to liquidate the said judgment by way of cash refund of the said amount, that is, Kshs.24,599,450/= or transfer of properties L.R.No. Kaagari/Kanja/5123 and L.R No. Mbeti /Kiamuringa /2207 in favour of the Claimant. Orders accordingly.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MARCH, 2021.

Hon. B. Kimemia Chairperson Signed 4. 3.2021

Hon. J. Mwatsama Deputy Chairperson Signed 4. 3.2021

B. Akusala Member Signed 4. 3.2021

Opundo holding brief for Michuki for Claimant

For appearance for Respondent

Hon. B. Kimemia Chairperson Signed 4. 3.2021