[2022] KECPT 903 (KLR)

Waithira v Urithi Housing Co-op Society Limited (Tribunal Case 448 of 2020) [2022] KECPT 903 (KLR) (7 December 2022) (Judgment)

Neutral citation: [2022] KECPT 903 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 448 of 2020

M Mwatsama, Vice Chair, Gitonga Kamiti & M. Mbeneka, Members

December 7, 2022

Between

Edwin Maina Waithira

Claimant

and

Urithi Housing Co-op Society Limited

Respondent

Judgment

1. Claimant filed Statement of Claim dated 13/10/20 on 12/11/20. The Claimant avers in March, 2016 he entered into a sale agreement with the Respondent for purchase of Bungalow No. 3 erected on LR.11407/214 for a consideration of Ksh. 3,600,00. 00. The Claimant paid a deposit of Ksh. 1,000,000. 00 and sourced for a loan facility for the balance of Ksh. 2,600,000. 00 million from his employer Eco bank.On 10th June, 2016 the Claimant’s advocate visited Respondent’s advocates Messrs S.J. Mwaura who advised they could not execute the charge because the property was charged to Unitas Sacco and they were in the process of discharging the same.

2. After sometime the Claimant was later informed in 2018 the Respondent has sold off the property to someone else and hand over done.The Claimant thus avers the same was a breach of contract and prays for;a.Specific performance on the defendant to meet their obligation as per the sale agreement execute the consent page on the charge documents to enable the plaintiff secure the full purchase price of the subject property and subsequently hand over the plaintiff his property.b.An eviction notice be effected on the person currently living on the subject property.c.In the alternative of (a) above refund the sum of Kenya Shillings one Million (Ksh. 1,000,000. 00).d.Bank loan interest on © above at kenya shillings Two Hundred and Seventy Four Thousand Eight Hundred and Twenty Two shillings and Sixty Eight cents (Ksh. 274,822. 68).e.Interests on (c) above at contract rates until payment in full.f.Damagesg.Costs of this suith.Any other or further relief as this honourable court may deem fit and just to grant.The Claimant filed list of documents filed on 12/11/20 which documents include;a.Sale Agreement dated 15th March, 2016b.Receipts from Urithi Housing Co-operative Societyc.Letters to S.I Mwaura Advocatesd.Email correspondencee.Loan offer to Edwin Mainaf.Letter to Urithi Housing Co-operative Society dated 28th May, 2018.

3. The Respondent filed a Statement of Defence dated 1/3/21 filed on 4/3/21. The Respondent deny the Claimant’s averments and stated they were strayers to the fact the Claimant borrowed balance of purchase price from his employer.The Respondent stated the Claimant had refused to pay balance of purchase price of Ksh. 2,600,000. 00 as per the sale agreement. The order was on him to ensure the balance was paid.The Respondent wished for the claim to be dismissed with costs.

4. On 17/3/22 the case proceeded for hearing with C.W.1- Edwin Maina testifying. He adopted his witness statement filed on 12/11/20 as his evidence in chief.On cross-examination he stated by Respondent failing to sign the charge from his financier caused delay in releasing funds.He state the charge documents were sent to Respondent’s advocates on 9/5/16. The Respondent opted not to call a witness and closed their case. Parties were directed to file written submissions.The Claimant filed their written submissions dated 27/6/22 on 15/7/22 and Respondent filed their written submissions dated 19/9/22 on 7/10/22.

5. Having considered the pleadings by the parties, evidence adduced in court and written submissions by the parties the issues for determination are;1. Which party was in breach of the sale agreement?2. Whether the Claimant is entitled to refund of deposit of 0ne million?Which party was in breach of the Sale Agreement?The Claimant avers the Respondent breached the Sale Agreement by not playing their part to enable him get financing.Further the Claimant avers the Respondent breached clause 9. 2 as if indeed the Respondent thought he would not complete the transaction they ought to have issued him with a notice of termination of the agreement which was not done.The Claimant further referred us to his documents email correspondences dated 10/5/2016 and 28/10/16. The Respondent on the other hand advanced to the tribunal the agreement that under clause 4 – completion was to take twelve months from date of execution.This was not done.Further the Respondent stated the charge instruments from the Claimant’s Advocates were forwarded 3 months after the monies ought to have been paid.

6. Question – then is who is to blame for the alleged breach of contract.In our view both parties delayed in one way or another. Who caused the delay is what should be answered. The Respondent however had the onus to communicate to the Claimant and inform them of the same. They received documents and did not act on them occasioning further delay.Why the property was sold to someone else is not explained by the Respondent.The Respondent kept the Claimant in the dark despite having his deposit. If indeed they felt the Claimant had breached the sale agreement they ought to have been informed of the same.The Claimant were in breach of paragraph 1 D (a) which they were to send a letter of offer from their financial to the Respondent.This was not done however despite this the completion period was for 12 months. Which means the Claimant was still within the time frame.The higher onus was on Respondent to either remove or give notice to Claimant more so after receiving the documents.

7. Whether the Claimant is entitled to refund of deposit?It is no doubt the Claimant deposited Ksh. 1,000,000. 00 with Respondent with a view of purchasing a house.6 years later he has not been refunded his deposit despite demand and property he was to purchase is long gave to another person.Why would the Respondent refuse to refund the said amount to Claimant?No amount of reasons given could persuade the tribunal that it is just for the Respondent to keep the money for a transaction that is not complete.The Respondent acted in a manner suggesting the transaction would be complete only for Claimant to find out the subject matter was handed over to someone else.The Respondent ought to bear responsibility of the interest payable by Claimant. They knew what the charge entailed, they knew the Claimant had sought for a financial facility and were negligent about it.

8. The prayers by the Claimant are for specific performance –it is evident the subject matter is no longer available as from evidence adduced by Claimant to Respondent the same was sold to another 3rd party who is not party to the suit and disturbing their peace for something they may as well not have been aware of that we shall not do.Prayer b of the Statement of Claim - for eviction cannot stand due to the aforementioned reasons.Prayer d – Bank loan interest – we agree with Claimant in payment of interest hand Respondent communicated to them that their application would not have been considered the interest therein if the Claimant chose to keep the property.

9. UpshotClaimant has proved his case and thus judgment is entered in favour of Claimant against Respondent for the following prayer.i.Specific performance on the defendant to meet their obligation as per the sale agreement execute the consent page on the charge documents to enable the plaintiff secure the full purchase price of the subject property and subsequently hand over the plaintiff his property- fail.ii.An eviction notice be effected on the person currently living on the subject property-fail.iii.Refund the sum of Kenya Shillings one Million (Ksh. 1,000,000. 00) – allowed.iv.Bank loan interest on © above at kenya shillings Two Hundred and Seventy Four Thousand Eight Hundred and Twenty Two shillings and Sixty Eight cents (Ksh. 274,822. 68)-allowed.v.Plus cost and interest of the suit.

Judgment, Read and Delivered virtually on 7thDecember, 2022. Hon. Mjeni Mwatsama – D/Chairperson Signed 7. 12. 2022Gitonga Kamiti - Member Signed 7. 12. 2022Maria Mbeneka - Member Signed 7. 12. 2022