[2023] KECPT 761 (KLR)

Rotich v Railway Housing Cooperative Society Limited (Tribunal Case E024/ 639 of 2021) [2023] KECPT 761 (KLR) (26 October 2023) (Judgment)

Neutral citation: [2023] KECPT 761 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E024/ 639 of 2021

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

October 26, 2023

Between

Flora Kananu Mbutura Rotich

Claimant

and

Railway Housing Cooperative Society Limited

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 19th May 2021 in which the Claimant avers that she was a member of the Respondent and remitted requisite funds demanded by the society. The Claimant avers that in February 2009 she applied and paid for allocation of society’s parcel of land at the Respondent’s site. She avers that she paid Kshs. 95,000/= which was composed of purchase price and transfer fee of Kshs. 15,000/=. The parcel of land was identified as Parcel No. 2617/851 and measuring 40 by 80 feet in size. The Claimant claims that the Respondent has since refused to transfer the parcel of land, which parcel of land, according to the claimant, has appreciated in value to Kshs.1,950,000/-. The Claimant therefore prays for:a.Immediate allocation of the Land Parcel No.2617/851 measuring “40x80” square feet which the claimant paid for in the year 2009. b.damages for breach of contract.c.Damages for loss of expectations.d).cost of the claim plus interest thereon from the date of the award until payment in full.The Claimant filed a witness statement and a List of Documents.

2. The Respondent did not file a Memorandum of or a Statement of Defence, and the Claimant filed a request for Interlocutory Judgement dated 21st May 2022 and filed on 30th January 2023. Default Judgment was entered in favour of the Claimant as against the Respondent.

3. The matter came for Formal Proof and the Claimant presented his case. She adopted her witness statement and produced her documents. She prayed the court to compel the Respondent to transfer the land to the Claimant, or refund the total sum of Kshs. 1,950,000/= being the current value of the land.

4. The Claimant put in their written submissions. In their submissions, the Claimant submits that she has established a prima facie against the Respondent. She refers to the sale agreement that she executed with the Respondent, and a Proof of payment of the same. The Claimant also refers to the Respondent’s letter dated 18th February 2009 in which the Respondent acknowledged the receipt of Kshs. 90,000/= from the Claimant and sought to transfer the Claimant to another parcel of land.

Analysis 5. It is not in doubt that the Respondents were duly served with the pleadings but they did not appear or respond to the same, the Claimant indeed filed a return of service.

6. The question thus before this Tribunal is whether the Claimant is entitled to the piece of land in question. The Claimant testified in Formal Proof, and we ask ourselves, what is Formal Proof?In the case of Samson S. Maitai & Ano….v …African Safari Club Ltd & Ano. (2010) eKLR, the Court held that:-“…..I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.Therefore, even in cases where the other party does not enter appearance and does not file a Statement of Defence, the Claimant still has the burden of adducing evidence to prove his case. The burden of proof does not leave the Claimant until that burden is discharged. The purpose of Formal Proof in this case, was for the Claimant to proof his case, to wit, to show that she has there was indeed a Sale Agreement for the suit property and the same was paid for fully by the Claimant.

7. The tribunal notes that the Claimant produced a Sale Agreement that corresponds with her claim. She also produced receipts totaling Kshs. 95,000/= paid to the Respondent and thus also corresponds to her claim. With the absence of any evidence to the contrary this Tribunal is convinced that indeed the Claimant’s claim is substantiated.

8. The upshot of the above is that find that the Claimant has proved his case to the required standard of proof being on a balance of probabilities and we order as follows:a.Immediate allocation to the Claimant by the Respondent of parcel No. 2617/851, within 30 days of this Judgement.b.The Claimant did not adduce evidence in support of prayers b and c and accordingly those prayers fail.c.Costs of this claim and interest from date of filing suit at Tribunal rates.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF OCTOBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 26. 10. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023HON. BEATRICE SAWE MEMBER SIGNED 26. 10. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 10. 2023HON. PHILIP GICHUKI MEMBER SIGNED 26. 10. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 10. 2023HON. PAUL AOL MEMBER SIGNED 26. 10. 2023Otieno advocate holding brief for Mr. Maosa advocate for the Claimant.Judgment as delivered.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 10. 2023