[2024] KECPT 1409 (KLR)

Kamatu & 6 others v The Liquidator (On behalf of Mukunguru Farmers Cooperative Society (In Liquidation) (Tribunal Case 370 of 2018) [2024] KECPT 1409 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1409 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 370 of 2018

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

August 29, 2024

Between

David Ndichu Kamatu & 6 others

Claimant

and

The Liquidator (On behalf of Mukunguru Farmers Cooperative Society (In Liquidation)

Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 6th August 2018. In the Statement of Claim, the Claimants aver that they are members of Mukungugu Farmers Cooperative Society (the society). That there were some parcels of land that remained from the sale of parcels of land owned by the Society. The Claimants claim that they purchased parcels of land from the society. The parcels were Njoro/Njoro Block 1 (Mukungugu)(A) 335 which was further subdivided to 360, 361, 362, 363, 364, 365, 366 & 367 which were purchased by 6 persons, and Njoro/Njoro Block 1 (Mukungugu)(A) 330 which was purchased by one person. The Claimants claim that the sale of the parcels was ratified in a Special General Meeting that was held on 28th February 2002. However, their claim is that they have never been given the titles to the parcels of land, yet the society is under liquidation. The Claimants feel aggrieved and, therefore, prays for:a.An order of temporary injunction to restrain the Respondent, their employees, agents or servants from interfering, intermeddling ortrespassing the Claimants’ parcels of land namely Njoro/Njoro Block 1(Mukungugu)(A) 335,360,361,363,364,365,366 &367 and Njoro/Njoro Block 1(Mukungugu) (A) 330 for the purposes of preservation of the subject matter pending the hearing and determination of this claim.b.An order permanentinjunction to restrain the Respondents from interfering,intermeddling and trespassing the Claimant’s parcel of land namely Njoro/Njoro Block 1(Mukungugu)(A) 335,360,361,363,364,365,366 &367 and Njoro/Njoro Block 1(Mukungugu) (A) 330 upon determination.c.An order of specific performance to compel the Respondents to perform their contractual obligation to the latter and issye the Claimants herein with Title Deed to their parcels of land namely Njoro/Njoro Block 1(Mukungugu)(A) 335,360,361,363,364,365,366 &367 and Njoro/Njoro Block 1(Mukungugu) (A) 330. d.A declaration that the claimants are the legal and justified proprietors of the parcels of land mentioned hereinabove.e.Any other relief that the Tribunal may deem fit to issue in the in the circumstances of this claim.f.An order as costs and interest for this claim.The 5th Claimant has authority to plead and he filed a witness statement on his behalf and on behalf of the Claimants, and also filed a list of Documents in support of their claim. The Documents include copies of receipts and copies of minutes of the Special General Meeting of the society held on 28th February 2002.

2. The Respondent entered appearance on the 14th October 2019.

3. During the hearing, only the Claimant’s witness, one Charles Ngugi testified. There was no appearance on the part of the Respondent, despite there being a duly filed affidavit of service. During the hearing, the witness adopted the witness statement and reiterated the contents of the Statement of Claim.

4. The Claimant filed submissions while the Respondent did not. In their submissions, the Claimants submit that they are bonafide purchasers for value and hence the liquidator should process their titles so that they can have full ownership of the parcels of land.

Analysis 5. The question before this Tribunal is whether the Claimants are entitled to the reliefs sought. The Claimants’ claim is for seven parcels of land that were allegedly bought from the Respondent. The Respondents only entered appearance but we can not see any defence on record. The Respondents did not also appear for the hearing of the matter, despite being served as shown by the affidavit of service on record, and neither did they submit on their defence. In essence, the claim is unopposed.

6. However, this being an unliquidated claim, we have to consider the testimony of the Claimants, and all the documents on record. The question we ask ourselves, therefore, is whether the Claimants have proved their case. That they have indeed shown that they have claim to the parcels of land in question.

7. During the hearing, the Claimants’ witness produced their documents, to wit copies of the the receipts and the copy of the minutes of the Special General Meeting in which the sale of the parcels to the Claimants was ratified. We note that the copies of each receipt indicate a buyer (the Claimants herein) and a number which we believe corresponds to the land they were purchasing. The question of consent by the society is answered by the copies of the minutes of the Special General Meeting in which the members deliberated that the procedure followed in the sale of the land was inappropriate, but still went ahead to ratify the sale, with a warning to the officials not to repeat such a mistake. We are inclined to believe that the Claimants have proved that indeed they bought the parcels of land, and that the purchase was ratified by the members of the society.

8. The upshot of the above is that we find merit in the Claimants’ claim, and find as follows:a.Prayers 2,3, and 4 are hereby allowed.a.An order of permanent injunction to restrain the Respondents from interfering,intermeddling and trespassing the Claimant’s parcel of land namely Njoro/Njoro Block 1(Mukungugu)(A) 335,360,361,363,364,365,366 &367 and Njoro/Njoro Block 1(Mukungugu) (A) 330 is hereby granted upon determination.b.An order of specific performance to compel the Respondents to perform their contractual obligation to the latter and issue the Claimants herein with Title Deed to their parcels of land namely Njoro/Njoro Block 1(Mukungugu)(A) 335,360,361,363,364,365,366 &367 and Njoro/Njoro Block 1(Mukungugu) (A) 330. c.A declaration that the Claimants are the legal and justified proprietors of the parcels of land mentioned hereinabove.b.The Respondents to bear the cost of this claim.c.Judgment is entered in favour of Claimant against Respondent for/in terms of prayer 2,3 and 4 plus costs of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF AUGUST, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024TRIBUNAL CLERK JONAHCharles Kamau presentMukungugu Farmers no appearance.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024