[2025] KECPT 304 (KLR)

Ng’anga v Stima Investment Coop. Society Limited (Tribunal Case 234 of 2020) [2025] KECPT 304 (KLR) (29 May 2025) (Judgment)

Neutral citation: [2025] KECPT 304 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 234 of 2020

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

May 29, 2025

Between

Stephen Chege Ng’anga

Claimant

and

Stima Investment Coop. Society Limited

Respondent

Judgment

1. This judgment dates back to 2020 and it relates to a Land buying transaction between the claimant and the Respondent The background is that on the 25th April 2015 the respondent offered to sell four percent of land situated in Lamu County to the claimant who is their member number 03255 for a total price of Kenya Shillings 1,700,000/= the Claimant accepted the offer and paid the total sum into the Respondent’s Account number 01200xxxxxxxx held at Cooperative Bank of Kenya Stima Plaza Nairobi Five years the Claimant was not given position of the parcel of land which made the claimant to approach the tribunal by filing as statement of claim dated 28 July 2020 seeking for orders for the refund of the Kenya Shillings 1,700,000/= together with the interest and costs

2. Service of the Summons to enter appearance, Statement of Claim dated 27/8/2020 together with the annexures was service upon the Respondents on 6/8/2020 When the Respondents failed file as Statement of Defence within the mandatory 15 days notice they claimant made an application dated 24/8/2020 to the tribunal and requested for an interlocutory judgment

3. On 27/8/2020 the tribunal entered into a summary judgment in favour of the Claimant against the Respondent for the refund of Kenya Shillings 1,700,000/= plus cost and interest at the Tribunal ratesOn 8th September 2020 the Claimant filed a Notice of Entry of judgment against the Respondent and anchored it under Order 22 Rule 6 of the Civil Procedure Rules.Thereafter on 16th September 2020 the respondent filed a Notice of Motion application, Dated 14th September 2020 and sort the following ordersa.Spentb.Pending the hearing and determination of the application herein, an order does issue staying the exparte judgment of this tribunal delivered and issued on 25th August 2020. c.The exparte judgment of this tribunal delivered and issued on 25th August, 2020. d.The exparte judgment of this Tribunal delivered and issued on 25th August, 2020 be set aside and the applicant be granted leave to file and serve its Response to the Respondent’s statement of claim dated 28th July 2020,ande.Costs be in the cause.One ground which the Respondent advanced as the primary reason for her delay to file a Memorandum of Appearance what's the delay or failure of the judiciary e- filing portal t to link up the case in short, the Respondent pleaded that the delay in filing Memorandum of Appearance was not deliberate but it was occasioned by the delay in linking the case to the judiciary filing portal.

4. Vide ruling the delivered virtually on 28/1/2021 the tribunal considered the circumstances which made the respondent not to file a memorandum of entrance or appearance within the statutory permitted time having found out that the Respondent had given instructions to her advocate in time and the advocate ran into difficulties in the e-filing system the Tribunal set aside the summary judgment together with all the consequential orders.

5. In the same ruling the Respondent was granted 14 days to file and serve a Statement of Defence as well as witness statement and List of Bundles of Documents while the Clement was granted 14 days upon service to file a reply to the defence within 14 days of service

6. Being dissatisfied with the tribunals order to set aside the summary judgment filed a Notice of Motion dated 4/2/2021 under Certificate of Urgency and contented that there is no judgment enter on 25/8/2020 to be set aside.

7. While dealing with the Claimant’s Notice of Motion Application dated fourth February 2021 which was seeking for a review of The Tribunal's Ruling delivered on 28th January 2021 and to allow execution of the judgment entered on 27th August 2020 the Tribunal invoked Section 99 of the civil procedure act end amended the dates of judgment indicated in the ruling from 25/8/2020 to 27/8/2020.

8. When the Matter came up for pre-trial directions on 1/3/2022 the Claimant opposed the Respondent Application to proceed and set the suit for hearing the reason for opposing the Application was because the Claimant stated that he had appealed under appeal number CA E633/21 against the Tribunal's ruling delivered on 2/9/2021.

9. The Respondent averred that they are no orders of stay issued by the High Court barring the tribunal from proceeding with the hearing and therefore the matter was set for hearing. Claimant’s CaseThe Claimant stated that he is a member of the Respondents and that in 2015 he paid Kenya Shillings 1,700,000/= for four parcels of land in Lamu County to the Respondent each plot was going for Kenya Shillings 425,000/= it was a testimony that he borrowed the Kenya Shillings 1,700,000/= from the Respondent Sacco and deposited it through EFT in theThe Respondents account number 01120070889200 have that Cooperative Bank of Kenya stima Plaza.The Clement didn't that he wants a refund of his money and no longer interested in the four parcels of land.

Respondent’s Case 10. The Respondents Witness is one Damaris Mutite who is the Legal Officer at Stima investment she briefed the Tribunal about the case in Malindi regarding the land in Lamu which was determined by the High Court through a judgment delivered on 13/3/2022 and it was in Favor of the respondent sacco however the respondent in the case have filed an appeal in the court of appeal marked as COA/1/2022 in Malindi.

11. That they are 400 members of the SACCO who purchased to the land in Lamu and that the circle has been briefing them of the developments of the caseThe confirm that the claimant made payment of Kenya Shillings 1,700,000/= to the respondent in 2016 and the land has not been given to him.

Analysis of facts 12. The benefit of reading through the Statement of Defence of the parties from the date when the statement of claim was filed together with the bundle of document, exhibit and having examined evidence filed, the various application and rulings and finally the various written submissions and the authorities cited and attached we are called upon to make a final decision as to whether the Claimant deserve to be refunded his money or not.

13. In the Claimant Statement of Claim dated 28/7/2020 filed on 4/8/2020 prayer number one is to have a refund of his Kenya Shillings 1,700,000/= together with interest and costs to support the refund the Claimant attached a member Statement Account which showed that on 31st December 2016 he paid Kenya Shillings 425,000/= under the heading LAMUONERF collaborated by the Respondent in her oral testimony at the time of hearing on N8/11/2024.

14. On their part the respondent state that the payment made by the Claimant was not a purchased price but it was a contribution towards the acquisition of land reference number 29207 which upon requisition was to be subdivided into portions and given to members according to the respective contributions

15. It is not undisputed that the Claimant is a member of the Respondent neither is it a dispute that he paid Kenya Shillings 1,700,000/= to the Respondent for land which was to be purchased in Lamu North.Whether the money paid by the Claimant is a contribution or a purchase price is a matter that can be opinionated from different context however we note from the Claimant’s Statement is oral testimony and written submissions that it was easily legitimate expectation that he would be given by the respondent the four pieces of plots within a reasonable period.

16. Regarding the issue of proof of sale Agreement, the Tribunal was told by the Respondent witness that the land buying model was such that members will be sensitized and those who agree will go ahead and make the contributions for the purchase of a proposed land a model which the claimant bought into it in good faith.In all its evidence the Respondent has not denied that they did not receive money from the claimant all they say is that they bought the land at Lamu North able to subdivide because of the County government of Lamu refused to the permission to subdivide according to the subdivision scheme Being no longer patient the Claimant demanded for the refund of his money invested in the project which for ordinarily would be the case for any investor of such land business model.The Tribunal does not see anything wrong when a party withdraws and demand for the refund of any amount invested in a project which has taken time to be fulfilledBecause of the Claimants decision to withdraw from the project and demand for refund of his money seems to be aggravated by the several court cases that are linked to the land.

17. During the hearing the Respondents witness confirm that they obtained a judgment in their favour in the High Court but the land owners have appealed against it.When cross-examined what would happen if the court of appeal do not agree with the High Court.She categorically stated that when that comes the board will make a decision on whether to give the purchasers another property or refund them their money.With the lack of sell agreement it is not surprising to us that they Claimant did not seek for specific performance but went straight and demanded for the refund of what he paid given that the Respondent contemplates to refund the money to its members in case the court of appeal does not agree with the High Court be that as it may they Tribunal do not therefore see the reason why the respondent does not wish to refund the Claimant now rather than later.

18. In any case even if the code of appeal agrees with the High Court meaning that the Respondent will be permitted to go ahead and subdivide the land they can sell the four portions of land that they would have allocated to the Claimant without doubt the Respondent would fetch a higher price than the price of Kenya Shillings 425,000/= of 2015.

19. It is therefore our finding that the Claimant claim against the Respondent succeeds in terms of refund of Kenya Shillings 1,700,000/= together with the interest to be calculated at the tribunal's rate of interest the respondent will bear the goes to the suit. Disposal OrderIn conclusion judgment is here by entered against the Respondent for the refund of Kenya Shillings 1,700,000/= plus interest at the Tribunal's rate and the cost of this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2025. Hon. B. Kimemia - Chairperson Signed 29. 5.2025Hon. J. Mwatsama - Deputy Chairperson Signed 29. 5.2025Hon. Beatrice Sawe - Member Signed 29. 5.2025Hon. Fridah Lotuiya - Member Signed 29. 5.2025Hon. Philip Gichuki - Member Signed 29. 5.2025Hon. P. Aol Member - Signed 29. 5.2025Tribunal Clerk MutaiKiptoo advocate for the RespondentB.N.Mbuthia advocate for Claimant – No appearanceKiptoo advocate- We pray for 30 days stay of executionTribunal order30 days stay of execution granted.Hon. J. Mwatsama - Deputy Chairperson Signed 29. 5.2025