[2023] KECPT 396 (KLR)

Mwaniki v Urithi Housing Co-operative Society Limited (Tribunal Case 331 of 2019) [2023] KECPT 396 (KLR) (27 April 2023) (Judgment)

Neutral citation: [2023] KECPT 396 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 331 of 2019

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

April 27, 2023

Between

Samuel Mwaniki

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is Statement of Claim dated 19/6/2019 filed on 20/6/2019 where the Claimant avers he is a member of the Respondent under membership number 5389. On 22nd July 2015 the Claimant invested with Respondent under Urithi Mavuno Investment 4 Almasi Invest Shares and Ghala Invest Shares valued at Kshs. 200,000/=.

2. On 17th December 2015 the Claimant made a deposit to the Respondent for Kshs. 1,250,000/= for the cottage that was to be erected on Land Reference No. 8624. On or about 16th May, 2017 the Respondent offered and the Claimant agreed for deposit to be converted to investment and Claimant was to be paid Kshs. 280,500/= per annum for the investment thus total investment with Respondent was Kshs.1,450,000/=.The Claimant avers the Respondent has:a.Failed to remit annual agreed sum of Kshs. 280,500/=.b.Failed to deliver the cottage to the Claimant.c.Failed to return the whole investment monies to the Claimant.The Claimant’s claim is thus for:a.Special damages of Kshs. 1,450,000/=b.Costs of this suit.c.Interest on a and b above at court rates.

3. The Respondent filed a Statement of Defence dated 3/7/2019 on 4/7/2019 to which they stated in paragraph 3 that they do not deny the Claimant’s subscribed to the Respondent’s products but deny he invested 200,000/= in Mavuno Investment Shares and Ghala Investment Shares or that Claimant made a payment of Kshs. 1,250,000/= for the purchase price. In alternative Respondent claimed to have released bonus to Claimant and Claimant failed to give notice of withdrawal of 60 days.

4. Matter came for hearing on 14/6/2022. Claimant’s witness 1 (CW1) – Samuel Murigi adopted his Witness Statement dated 19/6/2019 filed on 20/6/2019 as his evidence- in -chief. He produced his list of documents dated 19/6/2019 filed on 20/6/2019 as evidence Claimant’s exhibit (CExb) 1-19. He stated the Respondent’s were selling off plan cottages in Nakuru and he paid Kshs. 1,250,000/=. Unfortunately, the cottages project collapsed and Respondent stated the amount would be converted and invested in one of their products. He confirmed during cross-examination he had receipts for the payments;i.Receipt number 5922 dated 30/5/2014 for Ksh. 1000/=ii.Receipt number 6521 dated 26/6/2014 for Ksh. 1000,000/=iii.Receipt dated 17/12/2015 for Kshs. 1,250,000/=He confirmed there was no agreement between respondent and himself for Kshs. 1,250,000/= to be converted to be used for another project. The respondent’s did not call any witness and as such closed their case.

5. The parties filed their submission with Claimant filing their written submissions dated 20/7/2022 filed on 14/9/2022 and as at the date of writing this judgment the Respondent’s had not filed their written submissions.

6. Upon considering the pleadings, evidence of parties and written submissions of the parties, the issue for determination is;

Issue One Whether the claimant is entitled to his refund of Kshs. 1,450,000/=. 7. The Claimant gave evidence and produced documents to show he deposited the amounts more so as RTGS payment from Co-operative Bank done on 17/12/2015 which is not denied by Respondent if at all by citing funds did not reach their account. Despite no evidence that the said amount was to be used for other projects it is not denied the Respondent’s have monies from the Claimant to which are for cottages and the same did not materialize. We agree with respondent’s that share capital is not refundable and as such the same is not payable but they do not determine how much the share capital is.

8. All payments done by the Claimant as it were for projects to be undertaken and as such the prayers by Claimant as it were are to be deemed as such. With no evidence by Respondent other than mere denials we are convinced the Claimant has proved his case on a balance of probabilities.

Upshot 9. As such judgment is entered in favor of Claimant against Respondent for Kshs. 1,450,000/= plus costs and interest in the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 27. 4.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 27. 4.2023HON. BEATRICE SAWE MEMBER SIGNED 27. 4.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 27. 4.2023HON. PHILIP GICHUKI MEMBER SIGNED 27. 4.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 27. 4.2023HON. PAUL AOL MEMBER SIGNED 27. 4.2023