[2023] KECPT 61 (KLR)

Ndungu & another v Urithi Housing Co-op Ltd (Tribunal Case 104 of 2021) [2023] KECPT 61 (KLR) (31 January 2023) (Judgment)

Neutral citation: [2023] KECPT 61 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 104 of 2021

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

January 31, 2023

Between

Stephen Karuthiru Ndungu

1st Plaintiff

Lucy Njoki Kirika

2nd Plaintiff

and

Urithi Housing Co-Op Ltd

Respondent

Judgment

1. Matter for determination is brought vide (Statement of Claim) plaint dated 29/1/21. The Claimant’s avers they invested money into purchase of a plot from Respondent. Respondent offered plot No 94 measuring 0. 045 hact. The Claimant paid deposit of Ksh 500,000. 00 being deposit of purchase price.In October, 2018 Respondent forwarded Claimant unsigned agreement for same with proposal of;a.The purchase price for the plot would be Ksh 1,750, 000. 00b.The Plaintiff would pay a deposit of Ksh 1,500,000. 00 upon signing the agreement for sale;c.The balance of Ksh 250,000. 00 would be paid as parties would agree andd.The transaction would be completed within one hundred and fifty (150) days.On 15/10/18 Claimants signed and forwarded agreement to the Respondent for execution. On the same date Claimant made further payment of Ksh 1,000,000. 00 towards the purchase price.

2. The Respondent despite confirming receipts of purchase price they have not forwarded to Claimant their Letter of offer or Agreement. A demand for refund has been dismissed by Respondent despite Claimant not receiving their land/agreement for sale.The Claimant thus prayer is for;a.Refund of Ksh 1,500,000. 00 together with interest from October 15, 2018 until payment in full;b.Costs of this suit; andc.Any other or further relief this honourable court may deem fit grant.

3. The Respondent filed a Statement of Defence dated 9/3/21 on 10/3/21 the Respondent in their defence state they had laid deem terms which were to be complied with. The Respondent aver the Claimant is yet to clear the purchase price balance. The monies paid by Claimant are already gone in the project and as such there is nothing to refund.

4. Matter proceeded for trial on 18/5/22 with CW1 – Stephen Ndungu giving evidence. He adopted his written statement dated 29/1/21 filed on 12/2/21 as his evidence in chief. He further produced his list of documents. He confirmed during 2015 exam he had not completed payment and Ksh 250,000. 00 Was still only.The Respondent did not call any witness and thus parties directed to file written submissions. The Claimant filed their written submissions dated 17/6/22 filed on 12/10/22. The Respondent as at the date of writing this judgment had not filed their written submissions despite service e.

5. We have looked into the pleadings and testimony during trial and there seems to be only one issue at hand.

Issue One Whether the claimant is entitled to Ksh 1,500,000. 00 million paid to respondent? 6. It is clear that the Claimant paid Ksh. 1,500,000. 00 to the Respondent in two instalments. That is not disputed.What was the payment for?There was an alleged transaction of sale of land Ref No 117 known as plot 94. The Claimant avers they never received their signed up of agreement back from Respondent. The Respondent do not give an explanation why the same was not done only state there is no valid agreement because the Claimant is the only one who signed.For a contract to be in place there must be an;- Offer

Acceptance

Consideration

Mutual Understanding.

All these were there at the point Claimant was making payment and the said payment receipted by Respondent as evidence by Claimant’s document no 15 transfer of 1, 000, 000. 00 million document 16-receipt for 1,500,000. 00 million from Respondent.

7. From there the Respondent went silent and even in their Defence on trial they (Respondent) did not state whether the plot being purchased was available. The agreement as if were was for 2018, 4 years down the road no communication and demand made by Respondent for the balance for them to deliver the cash.It is from this that we indeed find the Claimant has a right to request for their refund.There is no reason why then Respondent should keep the funds for a failed project if at all.We find in favour of Claimant against Respondent for Ksh 1,500,000. 00 plus cost and interest in the suit.

JUDGMENT, READ AND DELIVERED VIRTUALLY ON 31ST JANUARY, 2023. HON. MJENI MWATSAMADEPUTY CHAIRPERSONSigned 31. 1.23. ...................................GITONGA KAMITIMEMBERSigned 31. 1.23. ...................................MARIA MBENEKAMEMBERSigned 31. 1.23In the presenceMs. Mumbi for the plaintiffMwangi and partners – No Appearance