[2021] KECPT 564 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO.65 OF 2013

AGNES MUTETE..............................................................................CLAIMANT

VERSUS

JAMES MUTISO...................................................................1ST RESPONDENT

KONZA RANCHING CO-OPERATIVE SOCIETY........2ND RESPONDENT

JUDGMENT

The Claimant has moved this Tribunal vide an amended statement of claim dated 24. 4.2013 seeking for the following reliefs:

1. A revocation of the illegal transfer from the 1st Defendant and the same be registered in the name of the plaintiff;

2. A declaration that the plaintiff is entitled to all the benefits, interest and dividends that have accrued to the said share from the date of the illegal transfer to date;

3. The Defendant to transfer to the plaintiff any such benefits, interest, movable and immovable dividends that have accrued to the said share; and

4. Costs and interests

In support of the above reliefs, the Claimant field her list and bundle of documents dated 22. 2.2013 and a witness statement of even date (22. 2.2012). She further filed her supplementary witness statement dated 4. 8.2016.

The 1st Respondent has opposed the claim by filing an amended Response on 13. 5.2013. Further, he has filed the following documents:

a. 1st Respondent’s initial set of list and bundle of documents dated 13. 5.2013;

b. 1st Respondent’s further list of witnesses dated 22. 5.2017;

c. 1st Respondents further list of documents dated 22. 5.2017.

The 2nd Respondent has opposed the claim by filing an amended statement of response dated 28. 5.2013.

Directions on disposal of the claim

Noting the age of the matter and also the age of the Claimant, we directed, on 2. 9.2020 that the claim be canvassed by way of written submissions. In doing so, we gave the following specific directions.

a. That all the witness statements be deemed as the evidence of the parties; and

b. That all the documents on record be deemed as produced as exhibits.

Pursuant to these directions, parties filed their respective written submissions as follows:

a. Claimant 16. 9.2020

b. 1st Respondent 26. 9.2020

c. 2nd Respondent 2. 11. 2020

Claimant’s case

It is the Claimant’s case that at all material times to the claim, she was the owner of share No. 1110 in the Respondent. That sometimes in 1981, she sold plot NO. 1365 to the 1st Respondent. That whilst doing so, she retained her membership and shares in the 2nd Respondent.

That sometimes in the year; 2012, she discovered that the 1st Respondent had illegally and fraudulently transferred the said shares to his name. That this was done without her knowledge and participation.

That upon investigation she established that the documents used to facilitate the alleged transfer were forgeries. That the 1st Respondent perpetuated the said forgery.

CW – 2, Danson Kilonzo Mulinge is the son for the Claimant. He states in his witness statement dated 4. 8.2016 that the Claimant has been a member of the 2nd Respondent since the year 1964. He confirmed that the Claimant sold plot No. 1365 to the 1st Respondent but retained her membership and shares in the 2nd Respondent.

That sometimes in the year, 2012, the Claimant discovered that the 1st Respondent had illegally and fraudulently transferred the said share to his name. that he knows that the Claimant could not have authored any letter and appended her signature since she is illiterate.

1st Respondents Case

The 1st Respondent has opposed the claim by filing the following witness statements:

a. 1st Respondent’s witness statement dated 13. 5.2013;

b. Witness statement of James Mulei Mulinge dated 22. 5.2017.

vide his statement, the 1st Respondent has denied the accusations leveled against him on account of the fact that he jointly bought the plot and the Claimant’s shares in 1980. That before doing so, he obtained consent from the Claimant and her family. That he also obtained concurrence of the 2nd Respondent and the then area chief. That once he took over the Claimant’s membership, he enjoyed it uninterrupted for a period of 32 years.

Vide his testimony, RW-2, James Mula Mulinge stated that he is the former Assistant Chief of Momaudu Sub-Location of Labwa Location. That he was appointed to the position in the year, 1966 and retired in the year 1990.

That he remembers on 6. 11. 1980, one Mr. Mulinge went to his office accompanied by the 1st Respondent. That after exchanging pleasantries, they informed him that Mr. Mulinge’s wifeAgnes Mutete, had a share with the 2nd Respondent and that she desired to sell it to the 1st Respondent. That in the discussion, he realized that the 1st Respondent and Mr. Mulinge had not taken the Claimant to the office. That it was a requirement then that any person who wished to sell land had to obtain a consent from the area Sub-chief.

That on 6. 11. 1980, he directed the 1st Respondent and the Claimant’s husband to accompany her to his office.

That on 14. 11. 1980, the Claimant, her husband and the 1st Respondent went to his office again. That on the said date, the Claimant confirmed that she intended to sell her plot and share to the 1st Respondent and that she needed his authority. That upon his satisfaction that the Claimant was the legitimate owner of the plot and the share, he wrote a letter of authority to transfer the share and the plot to 1st Respondent. That the Claimant signed the letter of authority in his presence by affixing her right thumb print. That the said letter of authority is dated 14. 11. 1980.

2nd Respondent’s case

The 2nd Respondent confirms that the Claimant was its member and owner of share No. 1110. That she subsequently requested to transfer her share to the 1st Respondent in accordance with the sale agreement between herself and the 1st Respondent.

Issues for determination

This claim has presented the following issues for determination

a. Whether the 1st Respondent obtained share No.1110 from the Claimant out of fraud.

b. What orders are available in the circumstances ?

Fraud

As was rightly submitted by the 2nd Respondent, Black’s Law Dictionary, 9th Edition; defines fraud to mean:

“ a knowing misrepresentation of the truth or a concealment of a material fact to induce another to act to his/her detriment. Fraud is usually a tort, but in some cases, especially when the conduct is willful, it may be a crime.”

It is trite law that whenever a party pleads fraud, he/she must specifically prove it. This was the holding of the court in the case of Mutiria Karubai M...vs- James Njagi Makembo & 3 others[2018] eKLR. In the pertinent part, the court held thus:

“It is trite law that fraud must not only be pleaded, but the particulars of fraud must be particularized by the party pleading fraud. The allegation must be strictly proved.”

In terms of the standard of prove, the court had this to say in the case of Gudka – vs- dodhia, Civil Appeal No. 21 of 1980:

“ The Respondent was in effect being accused of fraudulent conduct and allegations of fraud must be strictly proved. The fraudulent conduct must be strictly proved more than a mere balance of probabilities...”

The court in the case of Patil Patel -vs- Laisi Makanji EA 1957 echoed this position in the following terms:

“ Allegations of fraud must be strictly proved, although the standard of proof merely not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

In the present claim, the Claimant contend that the 1st Respondent in cahoots with the 2nd Respondent, fraudulently obtained and/or acquired her membership No. 1110 from the 2nd Respondent. That she got to know about the said fraud in the year, 2012.

On their part, the Respondents contend that the Claimant wilfully sold and transferred the said membership to the 1st Respondent in the year, 1980.

Further, the Claimant has disowned the documents produced by the Respondents as proof of transfer of membership and stated that the same are forgeries.

We have considered the contentions of the Claimant and the opposition from the Respondents. We have also perused the materials on record and deduce the following:

a. That the Claimant sold plot No. 1365 to the 1st Respondent in the year 1980;

b. That contemporaneous to transfer of the said plot (to 1st Respondent) the Claimant transferred her membership to the said 1st Respondent on 14. 11. 1980.

c. That the process of transfer of the Claimant’s plot and membership was sanctioned by the then area assistant chief.

We have particularly considered the evidence of RW-2, James Mula Mulinge. He is the then area assistant chief for Momaundu sub location. He gave a blow- by blow account of events that led to the Claimant transferring her plot and membership to the 1st Respondent. We find his evidence credible since he is the one who witnessed the events unfold.

We have also appreciated the following documents produced by the 1st Respondent.

a. Sale Agreement dated 6. 11. 1980;

b. Letter of transfer of share No. 1110 dated 14. 11. 1980;

c. Letter of Claimant’s husband dated 9. 8.1981;

d. Letter of acknowledgement by the 2nd Respondent to effect transfer; and

e. Extract of members register No. 1109-1112.

These documents show the process that led to the transfer of the said plot and the membership to the 1st Respondent.

Whilst the Claimant has disowned the said documents on account of forgery, she has not led evidence to prove the same. Forgery is a serious allegation which has the potential of giving rise to criminal charges should a person be found culpable. The Claimant has not led evidence to demonstrate that she has reported the event of forgery to police and the extent to which the same has been proven.

Better still, the Claimant did not procure the services or evidence of a document examiner to prove the said allegation. It thus remain a wild and naked allegation. The upshot of the foregoing is that we find that the Claimant has not proved that the 1st Respondent fraudulently obtained her membership No. 1110 from herself.

While holding so, we read a lot of mischief in the timing of the instant claim. The instant claim was instituted in the year, 2013 while the occurrences being challenged took place in 1980. This is a period of over 32 years. Where was the Claimant all this time. Has she woken up from slumber and realized that she had invested in the 2nd Respondent and that she needed to follow up on the same? As a diligent and active member, why did she not query or ascertained the status of her membership for such a long period of time?

Conclusion

The upshot of the foregoing is that we do not find merit in the claim and hereby dismiss it in its entirety. Taking into account the circumstances of this case and in light of the vexatious nature of the claim, we condemn the Claimant to meet the costs of the claim.

Judgment signed, dated and delivered virtually this 7th day of January, 2021.

Hon. F. Terer Deputy Chairman Signed 7. 1.2021

Mr. P. Gichuki Member Signed 7. 1.2021

Mr. B. Akusala Member Signed 7. 1.2021

In the presence of Mr. Sakini holding brief for Mr. Orina for 1st Respondent

Claimant absent

Court clerk- Maina

Hon. F. Terer Deputy Chairman Signed 7. 1.2021