[2024] KECPT 221 (KLR)

Mburu v Urithi Housing Co-operative Society Limited (Tribunal Case 528 of 2018) [2024] KECPT 221 (KLR) (7 March 2024) (Judgment)

Neutral citation: [2024] KECPT 221 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 528 of 2018

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

March 7, 2024

Between

Cecilia Njeri Mburu

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 25th October 2018. In the Statement of Claim, the Claimant avers that she is a member of the Respondent, member number UPS07829. According to the Claimant she entered into a contract with the Respondent for the purchase of land, a plot number 25 referred to as Juja Terrace Gardens at a cost of Kshs. 1,400,000/=. The Claimant claims that he paid the money, and she is yet to be shown the land. The Claimant therefore prays for:a.That an order be issued for the refund and release of Kenya shillings one Million four hundred thousand (Kshs. 1,400,000/= ) 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.The Claimant filed a Witness Statement and a List of Documents in support of her claim.

2. The Respondent filed a Memorandum of Appearance dated 14th November 2018 and filed on 15th November 2018, and a statement of Defence dated 5th December 2018. In the statement of Defence, the Respondent admits that the Claimant was its member. The Respondent agrees that it agreed to sell a plot of land to the Claimant. However, the Respondent avers that it did not receive a full payment for the plot of land from the Respondent, and yet the Respondent operates on a model in which it purchases a big chunk of land, and invites members to make bookings by paying deposits. After payment the land would be subdivided into plots which would be eventually be transferred to the members.

3. During hearing, the Claimant testified and produced her witness Statement and List of Documents for adoption by the court. In her testimony, the Claimant reiterated her claims in the statement of claim. During cross examination, the Claimant indicated that the actual purchase price was Kshs. 1,300,000/= and that the extra Kshs. 100,000/= was meant for Deposits/savings. The Respondents did not present any witnesses during the hearing. Both parties agreed to file written submissions.

4. Both parties filed their submissions.

Analysis 5. The Tribunal has noted all the pleadings filed and the evidence produced during the hearing. The submissions of the Claimants and Respondents have also been duly considered.

6. It is not in dispute that the Claimant was a member of the Respondent. The Respondent admits to this fact. It is also not in dispute that the Claimant made payments to the Respondent. The respondent did not deny the receipts the Claimant claimed were issued by the Respondent. The Respondent’s only issue is that the Claimant did not enter into a contract for the sale of land, and that the Sale agreement filed by the Claimant is defective as it does not show the property number and neither is it complete. The other question is also whether the claimant is entitled to a refund. This the Respondent submits that it did not receive the payment in full, and that the Claimant has failed to prove the payment of the amount she claims she paid.

7. This is a contract whereby the Claimant purchased land from the Respondent and paid a sum of money. The party who was in control of the land is the Respondent as it is the one in touch with the initial owner of the land and all other intended purchasers. The Respondent does not dispute that the Claimant was offered land to purchase. There is also no evidence that the claimant was informed of the Respondent’s model, or that she accepted that the physical ownership of her land would depend on other purchasers. The buyer has no control at all of the other purchasers since she is not a privy to the contract between the Respondent and them.

8. The Respondent does not dispute that the Claimant paid them a sum of money, and indeed in their submissions, the Respondents submit that it did not receive full payment. Meaning that at least the Claimant paid something. The question before us, therefore, is how much did the Claimant pay for the land. This Tribunal has perused the copies of receipts and deposit slips filed by the Claimants and it is satisfied that the Claimant indeed paid the money supported by those receipts and deposit slips. This Tribunal also notes that the sale agreement is incomplete since it is not filled by the Respondent, and does not also indicate the alleged property. However, based on the respondent’s statement in his statement of Defence that the Respondent “voluntarily executed a Sale Agreement”, we are inclined to believe the Claimant’s claim that she executed the sale agreement and forwarded the same to the Respondents for their execution and what was filed is the incomplete agreement before the Respondents executed their part.

9. The upshot of the above is that we find merit in the Claimant’s claim. We order as follows:

a.A refund of Kshs. 1,400,000/=.c.Costs of suit and interest from date of filing suit at Tribunal rates.

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 JemimahKimani for ClaimantEchom for RespondentHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024Echom- I pray for 30 days stay of executionKimani – No objection*Order: 30 days stay of execution granted.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024