[2020] KEELC 3474 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC APPEAL NO. 19 OF 2017

IN THE MATTER OF SECTION 81 OF THE CO-OPERATIVE SOCIETIES ACT, CAP. 490 LAWS OF KENYA AND IN THE MATTER OF THE CO-OPERATIVE TRIBUNAL

BETWEEN

JACINTA NJERI WAINAINA........................................................PLAINTIFF

=VERSUS=

MUKA MUKUU CO-OPERATIVE SOCIETY...................1ST DEFENDANT

JANE WAMBUI WAINAINA...............................................2ND DEFENDANT

(Being an appeal from the judgment of the Co-operative Tribunal of Kenya at Nairobi (Chairman A. Ithuku, Deputy Chairman C. Kithinji and member Hussein Shidie) given on 23rd February, 2017 dismissing the appellant’s claim)

IN

THE CO-OPERATIVE TRIBUNAL AT NAIROBI

CTC. NO. 172 OF 2005

JACINTA NJERI WAINAINA......................................................CLAIMAINT

VERSUS

MUKA MUKUU CO-OPERATIVE SOCIETY.................1ST RESPONDENT

JANE WAMBUI WAINAINA.............................................2ND RESPONDENT

JUDGMENT

At all material times one, Wainaina Mugeca, deceased (hereinafter referred to only as “the deceased”) was a shareholder and a member of the 1st respondent which was a society registered under the Co-operative Societies Act, Chapter 490 laws of Kenya. The deceased was the 1st respondent’s member No. 555. By virtue of his membership, the deceased was allocated a parcel of land known as plot No. 3 – 034 (hereinafter referred to only as “the suit property”) by the 1st respondent on 17th March, 1982. The deceased died on 1st October, 1993. By the time of his death, the deceased had taken possession of the suit property and was in occupation thereof with his family of two wives.

The appellant and the 2nd respondent are widows of the deceased. They are both in occupation of the suit property. The appellant filed a suit against the respondents on 4th April, 2005 at the Co-operative Tribunal at Nairobi in Tribunal Case No. 172 of 2005 (hereinafter referred to only as “the tribunal case”) concerning the ownership of the suit property. The appellant averred in her statement of claim dated 29th March, 2005 that she was a member of the 1st respondent and that as member No. 555 she was allocated the suit property by the 1st respondent on 23rd March, 1994. The appellant averred that on 27th January, 2005, the 1st respondent without any authority or consent from her wrongfully changed the records relating to the ownership of the suit property and instead of the property remaining in the sole name of the appellant caused the property to be registered in the names of the appellant and the 2nd respondent as joint owners in equal shares. The appellant averred that despite demand made upon the 1st respondent to remove the name of the 2nd respondent as a co-owner of the suit property, it had failed to do so. The appellant sought judgment against the respondents for an order that the name of the 2nd respondent be cancelled from the 1st respondent’s records as a co-owner of the suit property and the ownership records of the suit property be reverted to the position it was prior to 27th January, 2005 with the appellant as the sole owner of the suit property.

The 2nd respondent filed a statement of defence at the tribunal on 4th May, 2005 denying the appellant’s claim in its entirety. The 2nd respondent averred that the appellant and her were joint members of the 1st respondent and as such they owned the suit property jointly in equal shares. The 2nd respondent denied that she was involved in any wrongdoing by being registered as a co-owner of the suit property. The 2nd respondent averred that the suit property should remain in the joint names of the appellant and the 2nd respondent.

The 1st respondent filed a statement of defence on 18th May, 2005. The 1st respondent averred that it had been established that the suit property was to be shared equally between the appellant and the 2nd respondent. The 1st respondent urged the tribunal to dismiss the appellant’s claim.

The appellant’s suit before the tribunal was heard between 2006 and 2016 and a judgment was delivered on 23rd February, 2017. The appellant gave evidence before the tribunal and called one witness the same as the 2nd respondent. The 1st respondent called one witness. The appellant told the tribunal that the deceased had given her name as his next of kin to the 1st respondent in relation to the suit property. She stated that the 2nd respondent who was her co-wife had other parcels of land. The appellant told the tribunal that after the death of the deceased, she went to the 1st respondent on 23rd March, 1994 and requested that the deceased’s share in the 1st respondent and the suit property be transferred to her name and that the request was accepted and she was accordingly issued with a plot card on the same date.

The appellant stated that when she visited the 1st respondent’s office in January, 2005, she discovered that the transfer that had been effected in her favour in respect of the deceased share and the suit property had been cancelled and the property transferred to the names of the 2nd respondent and she as joint owners in equal shares. The appellant stated that she was not involved in the transaction and the signatures in the transfer documents purporting to be hers did not belong to her. The appellant told the tribunal that she had ten (10) children while the 2nd respondent had only one (1) child and that the 2nd respondent had other parcels of land. The appellant’s witness before the tribunal, Francis Gitau Mugecha corroborated her evidence. He told the tribunal that it was the wish of the deceased that the suit property be owned by the appellant and that is why he made her a next of kin. He stated that the 2nd respondent owned other parcels of land.

The evidence of the 1st respondent’s witness given before the tribunal on 15th July, 2010 is not part of the record of appeal. On 13th November, 2018, the court granted leave to the 1st respondent to file a supplementary record of appeal incorporating the proceedings of 15th July, 2010 and this had not done as at the time I fixed a date for this judgment. I have looked at the tribunal’s handwritten proceedings. The proceedings were taken down in such a manner that it is very difficult to follow. What I can gather is that one, John Thomas gave evidence on behalf of the 1st respondent. He told the tribunal that the deceased was a shareholder and a member of the 1st respondent and that after his death, there was a dispute between his two (2) wives; the appellant and the 2nd respondent, that was resolved by the 1st respondent’s committee to the satisfaction of both parties. He stated that the committee divided the suit property equally between the two (2) wives.

The evidence given by the 2nd respondent before the tribunal on 23rd November, 2010 did not also find its way to the record of appeal which illustrates the careless manner in which the record was prepared. From the original file of the tribunal, I have gathered from the hand written notes that the 2nd respondent told the tribunal that she owned share No. 555 in the 1st respondent that belonged to the deceased. She stated that the deceased and she acquired the suit property before the appellant was married by the deceased in 1970s. She stated that the suit property was shared between her and the appellant before the death of the deceased and that there was a boundary between them. The 2nd respondent stated that in October, 1995 he received a letter about the decision that had been reached by the 1st respondent’s committee regarding the ownership of the suit property.

From the record, the 2nd respondent gave evidence afresh on 7th September, 2016 before a new panel of the tribunal. Even this testimony is missing from the typed proceedings and the record of appeal. In her evidence tendered on 7th September, 2016, the 2nd respondent reiterated her evidence of 23rd November, 2010. The 2nd respondent added that after the suit property was apportioned between the appellant and the 2nd respondent by the 1st respondent, the 2nd respondent was issued with a membership card by the 1st respondent. She stated that the appellant should keep to her portion of the suit property and that she had no problem with her. In cross-examination, she stated that the deceased had another parcel of land which he sold. The 2nd respondent stated further that she had other parcels of land which she purchased and which were not given to her by the deceased. She disputed the evidence that was given by the appellant and her witness. The 2nd respondent called Peter Kamau Mugecha as her witness. Peter Kamau Mugecha corroborated the evidence of the 2nd respondent. He stated that the deceased was illiterate and could not have signed a next of kin form.

After the close of evidence before the tribunal, the parties made closing submissions in writing. The tribunal considered the evidence and the submissions and rendered its judgment on 23rd February, 2017 as mentioned earlier. In its judgment the tribunal made the following findings;

(i) That the deceased did not nominate the appellant as his next of kin in respect of the share that he held in the 1st respondent and the suit property.

(ii) That the appellant and the 2nd respondent appeared to the 1st respondent’s committee as personal representatives of the deceased and as such were equally entitled to have the deceased’s share in the 1st respondent transferred to them.

(iii) That the 1st respondent’s executive committee had power to share the suit property between the deceased’s two (2) wives, the appellant and the 2nd respondent in the manner in which they did.

(iv) That the appellant had failed to prove her claim against the respondents.

Arising from those findings, the appellant’s claim before the tribunal was dismissed with costs. It is against that decision that the appellant brought this appeal. In her memorandum of appeal dated 18th May, 2017, the appellant challenged the decision of the tribunal on the following grounds;

(i) That the tribunal erred in its finding that there was no valid nomination by the deceased of a next of kin in relation to the suit property.

(ii) That the tribunal erred in law in holding that the 1st respondent’s committee had power to transfer the deceased’s share in the 1st respondent even when the issue was contentious.

(iii) That the tribunal erred in its interpretation of section 39 of the Co-operative Societies Act, Chapter 490 Laws of Kenya as a result of which it wrongly transferred the suit property to the appellant and the 2nd respondent.

(iv) That the tribunal erred in its failure to consider the provisions of section 41 of the Laws of Succession Act, Chapter 160 Laws of Kenya on the distribution of the assets of a deceased polygamous man.

(v) That the tribunal erred in its finding that the deceased did not prove her claim against the respondents.

The appellant asked the court to set aside the decision of the tribunal and substitute it with an order allowing her claim before the tribunal with costs of the proceedings before the tribunal and of the appeal.

The appeal was argued by way of written submissions. The appellant filed her submissions on 19th March, 2018 while the 1st respondent filed its submissions on 27th April, 2018. The 2nd respondent did not file submissions. I will consider the above mentioned grounds of appeal sequentially. On the 1st ground of appeal, I am unable to fault the tribunal for its finding that there was no valid nomination of the appellant by the deceased as his next of kin in relation to the share he held in the 1st respondent. The appellant produced a number of documents in support of her contention that the deceased had nominated her as his next of kin. I have evaluated afresh the evidence that was adduced by the parties on this issue. The next of kin form that was produced by the appellant in evidence was disputed by the 2nd respondent and her witness. They contended that the deceased was illiterate and could not have signed the form. From the evidence on record, the 1st respondent seems to have acted on that form. However, in its evidence, the 1st respondent seems to have disowned the form. The tribunal which heard the parties on the issue and considered their evidence made a finding that there was no valid nomination of the appellant as the deceased’s next of kin. The said nomination of next of kin form bore no date, no signature of a representative of the 1st respondent or a stamp verifying its validity. It is therefore not clear as to when the form was signed and whether the nomination was approved by the 1st respondent. The by-laws of the 1st respondent was not placed before the tribunal. It was from the said by-laws that the tribunal could have interrogated the nomination process including the form it should have taken. I am of the view that the tribunal had sufficient evidence before it to support its finding that there was no valid nomination of the appellant as next of kin of the deceased. Since the tribunal had the benefit of hearing and seeing the witnesses, I have no reason to overturn its findings of fact.

It is well established that an appellate court will not ordinarily interfere with the findings of fact by the trial court unless they were not based on evidence at all, or on misapprehension of the evidence or where it is demonstrated that the court acted on wrong principles in reaching its conclusion. See, Peter v Sunday Post Ltd. [1958] E.A424 and Makube v Nyamuro[1983] KLR 403. The appellant did not establish any of the foregoing grounds. I therefore find no merit on the first ground of appeal.

With regard to the 2nd ground of appeal, the power of the 1st respondent to transfer a share of a deceased member is set out in section 39(1) of the Co-operative Societies Act, Chapter 490 Laws of Kenya. Under that section, the 1st respondent had power to transfer the deceased’s share to his nominee if he had one, and in the absence of such nominee, to such person who appeared to it as the deceased’s legal representative. The tribunal as I have stated earlier made a finding that the deceased had not nominated a next of kin to whom his share could be transferred. This finding meant that the 1st respondent could only transfer the deceased’s share to a person or persons who appeared to the 1st respondent as the deceased’s legal representative.

In section 2 of the Co-operative Societies Act, Chapter 490 Laws of Kenya, a personal representative is defined as:

“any person who, under the law or custom, is responsible for administering the estate of a deceased person.”

There was a dispute which the 1st respondent was aware of between the appellant and the 2nd defendant over the share that was held by the deceased in the 1st respondent. From the evidence on record, the 1st respondent held meetings with the parties to resolve the dispute. It was following these meetings that the 1st respondent decided to transfer the deceased’s share and the suit property to the appellant and the 2nd respondents jointly to hold in equal shares. The 1st respondent contended that the appellant and the 2nd respondent were widows of the deceased and as such appeared to it as the deceased’s legal representatives. The tribunal upheld this decision. I have reproduced above the definition of a legal representative under the Co-operative Societies Act. From the record, no evidence was led before the tribunal as to the custom that the deceased subscribed to.

I am of the view that there was no basis upon which the 1st respondent and the tribunal could have concluded that the appellant and the 2nd respondent were the legal representatives of the deceased or appeared to be so, more particularly when the two had a dispute over the ownership of the deceased’s share in the 1st respondent which formed part of the deceased’s estate.

I am in agreement with the appellant that after finding that the deceased did not nominate a next of kin in relation to the share that he held in the 1st respondent and there being no agreement between the appellant and the 2nd respondent on how to apportion the share between them, there was no basis upon which the 1st respondent could say that the appellant and the 2nd respondent appeared as the deceased’s legal representatives and as such should share the suit property equally. The 1st respondent in my view should have maintained the status quo in relation to the deceased’s share and advised the parties to apply to the court for a grant of letters of administration in respect of the estate of the deceased in which application the court would have determined how the said share in the 1st respondent was to be shared out. I am in agreement with the appellant that the 1st respondent had no jurisdiction to determine the dispute between the beneficiaries of the estate of the deceased on the inheritance of the share that the deceased held in the 1st respondent. Due to the foregoing, I find merit in ground 2 of appeal. This finding disposes of grounds 3 and 4 of appeal which I also find to be meritorious.

On ground 5 of appeal, I am in agreement with the appellant that the tribunal erred in dismissing her claim wholly as against the respondents. The tribunal should have found that the 1st respondent had no power to transfer the suit property to the appellant and the 2nd respondent jointly in equal shares. The only claim by the appellant that the tribunal should have rejected was that which sought an order that the suit property remains registered in the name of the appellant alone. As I have held above, the appellant was not validly nominated as the deceased’s next of kin. In the circumstances, the 1st respondent had no basis for transferring the deceased’s share to her. The transfer of the suit property to the appellant should have remained cancelled, the share the deceased held in the 1st respondent and the suit property reverted to the deceased’s name and the parties advised to refer the dispute to court.

In the final analysis and for the foregoing reasons, the appellant’s appeal succeeds in part. The appeal is allowed on the following terms;

1. The judgment of the tribunal delivered on 23rd February, 2017 is hereby set aside and in place thereof, the court hereby makes the following orders;

(i) The transfer of the share held by Wainaina Mugeca, deceased in the 1st respondent and the suit property, namely, plot No. 3 – 034 to the appellant and the 2nd respondent effected on 23rd March, 1994 and/or on 27th January, 2005 is hereby cancelled.

(ii) The transfer of the share held by Wainaina Mugeca, deceased in the 1st respondent and the suit property, namely, plot No. 3 – 034 to the appellant effected on 23rd March, 1994 is hereby cancelled.

(iii) The plot cards, share certificates and any other documents of title issued by the 1st respondent to the appellant and the 2nd respondent in relation to the said share and property are hereby cancelled.

(iv) The 1st respondent shall revert the said share and the suit property to the name of the deceased, Wainaina Mugeca.

(v) The appellant and the 2nd respondent are at liberty to file a petition for grant of letters of administration in respect of the estate of Wainaina Mugeca, deceased in which petition the court shall determine the distribution of the deceased’s estate including the share held in the 1st respondent and the suit property, plot No. 3– 034.

2. Since the dispute involved close relatives, each party shall bear her own costs of the proceedings before the tribunal and of this appeal.

Delivered and Dated at Nairobi this 13th Day of February 2020

S. OKONG’O

JUDGE

Judgment read in open court in the presence of:

N/A for the Appellant

Mr. Musya h/b for Mr. Munyao for the 1st Respondent

N/A for the 2nd Respondent

C. Nyokabi-Court Assistant