[2023] KECPT 1082 (KLR)

Njoroge v Urithi Housing Co-operative Society Limited (Tribunal Case 766 of 2019) [2023] KECPT 1082 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KECPT 1082 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 766 of 2019

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

December 14, 2023

Between

Stephen Karanja Njoroge

Claimant

and

Urithi Housing Co-operative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 18th December 2019 in which the Claimant claims that he registered with the Respondent and entered into a payment plan for the building of a house by the Respondent on the Claimants Parcel Number Mavoko Town Block/3/52732……osten Terrace 11 Plot No. 0T029. The Claimant claims that he paid Kshs. 2000/= for the registration and a cumulative of Kshs. 764,000/= for the project in various dates. The Claimant avers that the Respondent failed to do the project, and that demand for refunds of the monies already paid have not been heeded. The Claimant therefore prays for :a.An order of specific performance of Project No. HPRJT000032 for the building of my home on Parcel Number Mavoko Town Block 3/52732 Osten Terrace II plot No. OTO29. b.In the alternative the refund of the total amount of savings in the sum of Kenya shillings Seven Hundred and Sixty Six Hundred (Kshs. 766,000/=) plus accrued interests thereof on the savings, yearly dividends and bonus.c.The costs of this suit and such other and/or further relief as this Honourable court may deem just and fit to grant.The Claim is accompanied by a Witness Statement in which the Claimant indicates that he was a member of the Respondent (Number 24426), and documents in support of the claim.

2. The Respondent entered appearance and filed a Statement of Defence dated 26th February 2020. In their Defence, the Respondent’s do not dispute that the Claimant is its member. However, the Respondent aver that the Respondent was to purchase land and transfer it to the Claimant. They also deny that the Claimant paid any money to them, and in the event that he had done so, the money is already sunk in the project that there is nothing left to refund. They pray this court to dismiss the Claimants claim.

3. During the hearing, only the Claimant testified. The Respondent did not appear during the hearing. The Claimant adopted his Witness Statement, and produced his documents. The Claimant confirmed that he has not produced anything in support of the Kshs.250,000/- claim. The Claimant also testified that the withdrawal slip was filled in the office by a lady called Grace.

4. Both parties filed their submissions. In their submissions, the Claimants submitted that there was a contract between the Claimants and the Respondent in which the Respondent offered and the Claimant accepted the offer of building houses and gave his contribution as consideration. The Claimants claim that the failure of the Respondent’s to build a house for the Claimants constituted breach and that the Respondent’s are liable for breach. The Respondent, on the other hand, in their submissions urged this Tribunal to take note that the Claimant did not produce any evidence in support of his claim of Kshs. 250,000/- and Kshs. 14,000/-.

Analysis 5. The question before this Tribunal is whether the Claimant is entitled to the prayers sought in his statement of claim as against the Respondent. In answering this question, the Tribunal notes that it is not in dispute that the Claimant was a member of the Respondent. What is in dispute is whether the Claimant indeed made deposits to the Respondent.

6. In answering this question, the Tribunal now considers the evidence of the parties, pleadings and documents produced. The Respondent’s did not produce any witness during the hearing and thus did not produce any documents in support of their Defence. The Claimant produced payments receipts given by the Respondent upon deposit of Ksh. 500,000/- and Ksh. 2,000/-. These receipts were not disputed by the Respondents. There are no receipts in support of the Claimant’s Claim of Kshs. 250,000/-, however, the claimant produced a withdrawal form that was allegedly filled by the office of the Respondent, which indicates that he is due for a refund of Kshs. 750,000/- which is the Kshs. 500,000/- plus the pleaded Kshs. 250,000/-, and which was approved by one Grace. The Respondents did not dispute the document. This tribunal is inclined to believe that the form was indeed approved by the Respondent and goes to validate the Claimants claim of Kshs. 750,000/-. The receipt for Kshs. 2000/- clearly indicate that this is registration fee and we therefore find this to be non-refundable. We find no proof for Kshs. 14,000/- claimed by the Claimant.

7. In light of the above, this Tribunal notes that the Respondents in their Statement of Defence claim that the refund is untenable because of the model that is used by the Respondents in that the money paid by the Claimant has sunk in the project. We find that this is not an excuse not to be liable to investors money since the Respondent’s had sole control of the model. Before the Respondents started taking investor’s money on their model, it was their sole responsibility to ensure that the investment was watertight and that due measures are in place to protect the investor’s money.

8. Flowing from above, we find merit in the Claimants Claim and order as follows:We enter judgment in favour of Claimant against Respondent for:a.A refund of Kshs. 750,000/-b.Costs of this suit and interestc.Interest on a, & b above from date of filing suit at Tribunal rates until payment in full.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF DECEMBER, 2023. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 14. 12. 2023HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 14. 12. 2023HON. BEATRICE SAWE - MEMBER SIGNED 14. 12. 2023HON. FRIDAH LOTUIYA - MEMBER SIGNED 14. 12. 2023HON. PHILIP GICHUKI - MEMBER SIGNED 14. 12. 2023HON. MICHAEL CHESIKAW - MEMBER SIGNED 14. 12. 2023HON. PAUL AOL - MEMBER SIGNED 14. 12. 2023Tribunal Clerk JonahMrs. Randa advocate for the ClaimantEchon advocate holding brief for Mr. Mwangi for the Respondent.Echon advocate – We pray for 30 days stay of Execution.Mrs. Randa- We have no objectionTribunal orders:30 days stay of execution granted.HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 14. 12. 2023