[2024] KECPT 1382 (KLR)

Nyambura v Uriithi Housing Cooperative Society Limited & another (Tribunal Case 723 of 2019) [2024] KECPT 1382 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1382 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 723 of 2019

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

August 29, 2024

Between

Mary Nyambura

Claimant

and

Uriithi Housing Cooperative Society Limited

1st Respondent

Samuel Ngundo Maina

2nd Respondent

Judgment

Claimants Case 1. The Claimant’s case is based on the Amended Claimant’s Statement of Claim dated 27th February 2020, her Witness Statement dated 20th November 2019, Claimant’s documents of 20th November 2019, hearing proceedings on 16th August 2023 and Claimant’s written submissions dated 21st August 2020 and 26th February 2024.

2. In her Statement of Claim, the Claimant states that she is a Member of the Respondent Member No. 4187 and that she purchased of pot No. 11 Olive Gardens Phase III, Juja Komo Block 1/3452/plot 11.

3. She avers that she entered into a contract with the Respondent for purchase of the suit property on 27th September 2016.

4. She states that the agreed purchase price of Kshs 1,200,000/- was to be repaid in 6 instalments, with the first mandatory instalment being paid before signing the contract.

5. The Claimant tabulates how she paid all the installments, the last being Kshs 100,000/= on 27th February 2017 and receipted as Receipt No.955586.

6. She states that upon completion of the payment she was issued with a Certificate of Ownership, Certificate No. 553 of 1st March 2017.

7. She was also issued with a Share Certificate No. 9825 of 13th September, 2016 to show she was a fully paid-up member of the Respondent.

8. She avers that the Respondent has breached the terms of the Sale Agreement and thus prays for judgement against the Respondents as stipulated in the Statement of Claim.

9. In her Witness Statement, the Claimant restates what she stated in her Statement of Claim. She states that the refusal to transfer the suit property to her name by the Respondent is illegal and constitutes a breach of the law.

10. The Claimant has filed documents to prove her case, among them being; Sale agreement between Claimant and Respondent, sealed on 27th September 2021.

Various receipts from the Respondent to the Claimant being part payment for the suit property and final payment for the property of Kshs 100,000 dated 27th February 2017.

Share certificate in Claimant’s name dated 13th September 2016 signed by the Respondent’s Chairman and Hon Secretary.

Certificate of ownership in the names of the Claimant dated 1st March 2017 specifically showing Claimant’s ownership to the suit property.

11. During the hearing of the Claimant’s case on 16th August 2023, the Claimant adopted her Statement of Claim and documents as her Evidence- in -Chief.

12. On cross-examination, she stated that her prayer is refund of Kshs 1. 200,000/= plus interest. She stated that Kshs 1. 200,000/= is for the suit property. She stated that she did not pay stamp duty without ownership documents. she stated that stamp duty was not part of the Kshs 1. 200,000/= claim.

13. She denied that not paying stamp duty was a breach to the Sale Agreement. She stated that she paid through cash deposits into the Respondent’s account.

14. On re-examination, she stated that stamp duty is payable to the government and was not done. She also states that the Respondent did not give her relevant documents to enable her pay stamp duty.

15. In their Claimant’s submissions, the Claimant narrates her journey of ownership of Plot No. 11 on Juja/Komo Block 1/3452 on Olive Gardens Phase III.

16. It is not disputed that the Respondent and the Claimant entered into a Sale Agreement in respect to the suit property and that the Sale Agreement is properly executed.

17. The Claimant stated that she fulfilled her obligations of the Sale Agreement and that the Respondent is in breach of this Sale Agreement.

18. In her written submissions, the Claimant asserts that she has established a prima facie case and that her prayers are allowed by this court.

Respondent’s Case 19. The Respondent’s case is based on the Defence Statement dated 26th February 2020, Defence Statement of 15th June 2021 and the hearing on 16th August 2023 and written submissions dated 20th February 2024.

20. In their Defence, the Respondent confirms that the Claimant is their Member Number 4187 and that they agreed to sell to her a plot upon complying to the laid down terms as per the sale agreement.

21. The Respondent states that the Claimant voluntarily executed the Sale Agreement.

22. The Respondent states that the Claimant is yet to complete is yet to complete payments of the purchase price and a conveyance fees to enable the transfer of the plot to her.

23. They averred that refund does not arise since amount was used to pay deposit for the land and surveyor’s fees. They state that the money is stuck in the project.

24. The Respondent denies receiving Kshs 500,000/= on 14th September 2016.

25. The Respondent denies the entire claim of Certificates of Ownership and the Share Certificate to the Claimant.

26. The Respondent denies the Claimant’s assertions on getting a title deed for the plot. They also deny receiving demand notices from the Claimants.

27. The Respondent prays that the suit is dismissed. In their Defence, the Respondent witness Mr. Samuel Ngondo Maina who is the Chairman of the Respondent confirmed that Olive Gardens Phase 3 is one of the many projects undertaken by the Respondent.

28. He stated that members were joining any project voluntarily.

29. We note however that this statement was not defended during the hearing. The Defendant did not file any documents.

30. During the hearing of the case on 16th August 2023, the Defendant advocate only cross-examined the Claimant case and did not present any witness.

31. In their written submissions dated 20th February 2024 the Respondent denies that the Claimant paid the Respondent any purchase price.

32. The Respondent confirms that they did not call any witness. In the submissions, the Respondent avers that the Claimant was aware of the model employed by the Respondent that is, buy big chunk of land and subdivide for sale to Members.

33. The Respondents state that the Claimant is yet to complete the payment for purchase of plot as well as conveyance fees to enable the Respondent transfer the property to her.

34. The Respondent states that the Claimant did not produce receipts or bank slips as evidence of payment.

35. The Respondent states that the issue of refund does not arise since the money allegedly paid by Claimant was used as a deposit to pay the owners of the land and survey fees.

36. The Respondent states that the Claimant has not proved her case and that the refund of Kshs 1,200,000/= is unsubstantiated and therefore prays the courts to dismiss the claim with costs.

Analysis 37. We note that the Claimant has produced documents to prove her claim. These documents include the following; Various payments receipts from the Respondent for payment for Juja/Kome Block 1/3452 plot 11.

These payment receipts are tabulated in the Statement of Claim item No 7.

38. The Respondent has acknowledged receipt of the above monies and subsequently provided the Claimant with a Share Certificate No. 9825 dated 13th September, 2016 and a Certificate of Ownership No. 5553 for No. 11 in Olive Gardens Phase III dated 1st March 2017.

39. We also observe that during the hearing of the Claimant’s case, the Claimant stated that she would wish a refund of her Kshs 1. 200,000/= paid to the Respondent for purchase of plot.

40. The Claimant stated that she paid all the payable amount to the Respondent, a statement which was not denied by the Respondent.

41. The Claimant produced sales agreement made on 27th September, 2016 and executed by the Claimant and the Respondent.

42. In the Sale Agreement, the purchase price is explicitly indicated as Kshs 1. 200,000/=. The instalment terms are also clearly indicated. The plot details are also clearly indicated in the agreement (location and size). There is no evidence that there was a variation to this agreement as provided in No. 16 of the agreement.

Conclusion: 43. From the entire proceeding of this case, we note that the Claimant has adequately prosecuted her case to the satisfaction of this court. We also observe that the Respondent did not present a Respondent witness in court during the hearing, rendering the Respondent's Witness Statement inadmissible.

44. The Claimant has tabulated all the payments she has made to the Respondent in line with the Sale Agreement.

45. In view of the above and in line with the Claimant’s statement during the hearing of the case, we order that the Respondent refunds Kshs 1,200,000/= to the Claimant plus costs and interests.

Upshot: 46. We enter judgement in favour of Claimant against the Respondent for Kshs 1,200,000/= plus costs and interests.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHNo appearance for the parties.Judgment delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024