[2023] KECPT 752 (KLR)

Waithaka & another v Urithi Housing Co-operatives Society Limited (Cause 136 of 2021) [2023] KECPT 752 (KLR) (Civ) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 752 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Cause 136 of 2021

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

August 31, 2023

(Coram: Hon.B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Between

Mike Ndegwa Waithaka & Agnes Njeri Wachira

Claimant

and

Urithi Housing Co-operatives Society Limited

Respondent

Judgment

Claimants Case 1. The claim for determination is a statement of claim dated 2/3/2021. On diverse dated in 2017 and 2018 the Claimant and Defendant entered into a Sale Agreement for a plot NO 180 measures 0. 045 Hectares in land LR/117 IN Kiambu County at an agreed price of Kshs 1,500,000/=.The Claimant paid the full amount for the Respondent plus Kshs. 2,000/= registration fees.The Respondent had not given possession of the said plot.As far as the Claimant is concerned, the sale agreement for the said plot is irretrievably broken.The Claimant thus prays for vacant possession of the plot as per sale agreement or alternatively a refund of purchase price and a 10% penalty.Whereof the Claimant prays for the following:a.Vacant possession of plot referred to as plot Number 180 within L.R 117 Kiambu County.b.In alternative payment of Kshs 1,652,200 as refund of the purchase price.c.General damages of the breach of contractd.Interest on (b) and (c) at commercial rate of 14%.e.Cost of the suit and Interest at the court rate.Respondents Case.The Respondent case is as per the Respondent’s Statement of Defence dated 1/4/2021 praying for the Claimant’s case to be dismissed with cost.The Respondent denies that the Claimant made payment for a plot save for the registration fee.The Respondent denies on Kshs 1,500,000/= sale price.

2. The Respondent confirm that the project dubbed Ruiru Ridges was not successful since members did not raise sufficient deposits to pay the owners of the land.Members who had subscribed to the Ruiru Ridges projects were transferred to other projects of their choice.

3. The Respondent also avers that the amount being claimed by the Claimant was used to pay surveyors and other expenses.The Respondent avers that the money is already sunk in the projects. Claimant was given an option to transfer to other projects.The Respondent avers that the issue of interest does not arise.The Respondent denies aver receiving a Demand Letter from the Claimant.As per the Respondents submissions dated 22. 6.2023 the issues for determination are:i.Whether Claimant made any payments for plot number 180 within LR. 117, Kiambu County.ii.Whether there is a breach of the contract of sale by the Respondent.iii.Whether Claimant is entitled to the reliefs sought in the claim.The Respondent avers that the payment made by the Claimant was not for plot number 180 of LR. NO. 117. The Respondent confirms there is an Agreement of Sale dated 19. 4.2018 for plot number 180 of LR. 117 between the Claimant and the Respondent.The Respondent states that the completion date for the plot number 180 payment was 90 days after its execution.The Respondents states that the Claimant did not comply to the agreement of sale conditions claiming that the Claimant has refused and/or failed to make payment for the parcel of land.On payment of Kshs. 1,652,200/= as prayed by the claimant, the respondent states that the claimant has never made any payment to the respondent, hence claimants not entitled to any refund on general damages for breach of contract, the respondent states that at no time did they breach the agreement for sale contract. The Respondent argues that the claimant has not provided a basis for this claim.

Issues of Determination 4. This court is invited to establish whether the Claimant paid Kshs 1,500,000/= for the purchase of the Plot No 180 in Ruiru Ridges projects of the Respondent and whether the Claim of penalty and interest is justified.From the Claimant List of documents dated 2/3/2021, the Claimant has presented an agreement for sale of Plot No 180 on LR NO 117 Kiambu between the Claimant and the Respondent dated 16/3/2018. The Claimant has also presented payment voucher for Kshs.1,500,000/= and a payment receipt of Kshs 1,500,000/= from the Respondent.During the hearing of the matter on 13/6/2022 the Claimant witness Agnes Njeri Wachira was taken through her evidence dated 2/3/2021 and list of documents dated 2/3/2021.

5. On cross examination, the Claimant confirmed paying for registration fee and a purchase price of Kshs 1,500,000/=.Claimant avers that the 10% penalty is as per the Agreement of Sale.She claimed she is not aware that, registration fee is not refundable.The Claimant confirmed she is aware that vacant plot is not available hence her claim of refund of Kshs 1,500,000/=.She stated that she is not ready for an alternative plot and reiterated that she would only agree to an alternative plot if it was for the similar value.

6. The Respondent did not have a witness but maintained that the Ruiru Ridges was one of the Housing Project that the Respondent was undertaking on its members behalf. The Respondent refuted they are a land buying company but are a Cooperative Society outfit where members contributed into a project thereby benefiting from the economies of scale.

Findings 7. Having considered the pleadings of both parties and their written submissions, this court is convinced that the Claimant has proved through the filed documents that indeed, there is an Agreement of Sale for Plot No 180 and Kshs 1,500,000/= paid to the Respondent for the purchase of the said plot.

The Respondent has not convinced this court that the Kshs. 1,500,000/= paid by the Claimant was used for surveyors and other expenses.

Conclusion.The Claimants prayer (a) is for vacant possession of the referred plot No. 180. The plot was not available and the Claimant was not ready for an alternative as offered by the Respondent, rendering this prayer untenable.In the alternative the Claimant is praying for a refund of Kshs. 1,652,200/= paid for purchase of plot Number 180 and penalty.It is evident that the Respondent breached the contract with the Claimant. The contract had specified the details of the plot the Claimant was to acquire on payment of the purchase price.In view of the above we therefore find in favour of the Claimant against the Respondent for:a.Vacant possession of plot referred to as plot Number 180 within L.R 117 Kiambu County untenable.b.Refund of Kshs 1,652,200/=.c.General damages of the breach of contract fails.d.cost and interest of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023TRIBUNAL CLERK JEMIMAHGACHOKA ADVOCATE FOR THE CLAIMANT.Echon Advocate Holding Brief For Mr. Mwangi For The RespondentEchon Advocate : We Pray For 30 Days Stay Of Execution.Gachoka advocate- We object and pray for a lesser period.Tribunal orders:21 days stay of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023