[2024] KECPT 1728 (KLR)

Kilungu & another v Kivila & 3 others (Tribunal Case 264 of 2014) [2024] KECPT 1728 (KLR) (3 October 2024) (Judgment)

Neutral citation: [2024] KECPT 1728 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 264 of 2014

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

October 3, 2024

Between

Frank Makau Kilungu

1st Claimant

James Makau Kilungu

2nd Claimant

and

Henry Kilungu Kivila

1st Respondent

Cosmas Mulwa Kilungu

2nd Respondent

Konza Ranching & Co Society

3rd Respondent

Japheth Mutua Musangi

4th Respondent

Judgment

1. This case goes way back to 23rd June, 2014 when the first statement of claim was filed. The Amended Statement of Claim was filed on 5th March, 2020. According to the Claimants, the parcel in issue Land No. Machakos/Konza North/Block 1/671 which is currently registered in the name of the 2nd Respondent has a history going back to 1964 when the Claimants and the 1st and 2nd Respondents grandmother Monica Katee Mumbo (Deceased) purchased shares in Konza Ranching and Cooperative Society and registered them under the name of Joseph Mwanza Kilungu- who is the Claimant’s elder brother.

2. The Claimants also claim that additional contributions were made in subsequent years and in 1990 when Monica Katee Mumbo died, she was substituted with Naum Munyiva Kilungu (Deceased)- who was the Claimants stepmother.According to the Claimants, the shares were to divided according to individual contributions and in 2011 the Claimants further purchased six additional shares. That in 2012 when the plot was issued to Naum Munyiva Kilungu who proceeded to collect the allotment letter.That in 2012, the Claimant took possession of the plot, and in 2014 Naum Munyiva Kilungu together with the 1st and 2nd Respondent informed the claimant that they had sold the property and threatened to demolish the Claimants house. That they proceeded and began constructing permanent structures.At the time of filing the claim, the claimants were seeking the following orders in their prayers:a.An order for the 3rd Respondent to recognize and amend their register to effect membership No. 557 proceeds/ land emanating thereof, more particularly all that land reference No. Konza South/ Konza South Block 5/724 as owned jointly by Frank Ndonye Kilungu, James Makau Kilungu, Monica Katee Mumbo, Mwanza Kilungu, Naomi Naum Muyiva Kilungu in accordance to the proportion of their respective contributions, which proportions is to be determined by the Honourable Tribunal.b.An order that the contributors of share No.557 translating to land reference No.Konza South/Konza South Block5/724 being Frank Ndonye Kilungu, James Makau Kilungu, Naomi Naum Munyira Kilungu to be subdivided and shared in the share 557 proceeds thereof, lands agricultural and commercial emanating from member No. 557 according to the percentage of their contributions.c.That in the alternative, an order for the 3rd Respondent to endorse in their register forthwith that share number 557 is registered in the names of Monica Katee Mumbo to hold in trust for herself and also for Frank Ndonye Kilungu, James Makau Kilungu, Monica Katee Mumbo, Mwanza Kilungu, Naomi Naum Munyiva Kilungu in their respective percentages of contributions as shall be determined by court and that the Respondents cannot sell transfer, alienate, lease, sub divide without their consent as they are also owners/beneficiaries of the share/membership.d.An order barring the Respondents or anyone claiming under them from selling, alienating, disposing the the share member No. 557 and all that land reference No. Konza South/Konza South Block 5/724 pending sharing as above stated in prayer (i).e.A declaration that the sale of plot number 505 now known as Konza South/ Konza South Block 5/724 by Naum Munyiva Kilungu (deceased) to the 4th Respondent was illegal and unlawful and devoid of consent as the suit property was held in trust for the Claimants.f.An order that the suit property Konza South/ Konza South Blocks 5/724 be transferred in favour of the Claimants.Naum Munyira Kilungu filed her Defence dated 28th July, 2014 stating that:a.She is the lawful proprietor of the agricultural plot number 505 and commercial plot number 213 membership number 557 at Konza Ranching and Farming.b.The second claimant hired some 10 acres and 2 acres that were originally part and parcel of member number 557 which resulted into parcel of land known as Machakos/Konza North/Block 1/671 that he caused to be registered in his own name when the same was supposed to be held in trust for his siblings.c.Mwanza Kilungu was initially registered as a shadow member of share number 558 that was later transferred into the name of Monica Katee Mumbo who was her husband according to the Kamba customary law and thus changed into number 557. That the late Monica Katee Mumbo later transferred the same to her, and that Mwanza Kilungu was not the Claimant’s grandfather but their elder brother.The 2nd Respondent through their Chairman David Muthoka Mutangili filed their Defence on 26th September, 2014 stating among others that:a.Payments were made from the year 1989 to the year 2007 and not in 2011 as claimed by the Claimants.b.The share membership number 557 initially belonged to Mwanza Kilungu but it was transferred to Monica Katee Mumbo in 1997 and later to Naomi Munyiva Kilungu.c.The family of Monica Mumbo upon her demise applied successfully for the transfer of her shares to Naum Munyiva Kilungu.d.That Naum Munyiva Kilungu is the bonafide registered holder of membership share 557 and holding it on behalf of the family members of Monicah Mvumbo.e.The Claimants have no capacity to institute the suit as they are not members of the 2nd Respondent society and are total strangers to the ownership of share number 557. f.If indeed it is true that the Claimants hold any interest in membership number 557, then it defeats logic why they have never initiated proceedings in any court of law to secure their interest 24 years after the deceased members died.g.That the two Claimants have never been members or shadow members of Konza Ranching and Farming Cooperative Society.h.That its not possible that the 1st Claimant has lived in the said plot from 2002 as the allotment of the plot was done in 2012.

3. During the hearing evidence was adduced in court to the effect that the land in question was subdivided into two parcels with one house belonging to the claimants taking one parcel and the second house belonging to the 1st Respondent taking the other parcel.The Claimants filed their written submissions dated 9th April 2024 stating that:The late Naum Munyiva held shares on behalf of the Claimants and as such she held a fudiciary duty on behalf of the beneficiaries.The 1st and 2nd Respondents filed their written submissions dated 12th February, 2024 stating that the documents the Claimants had attached in court had been rejected by the Tribunal in a ruling dated 29th September, 2017 and that the documents the Claimants had filed do not have signatures and identification numbers to be authentic and representative of the family meetings d they were claiming.The 4th Respondent filed his written submissions stating that the Claimants are strangers to Konza Ranching and Cooperative Society and the party he did all his transactions with was a member of the society. That they have had the same issue over the same matter with the 1st Claimant at Machakos Law Court (case number 428 of 2015) whereby the Claimant lost and eviction orders issued and the file was closed.

4. We have considered the pleadings, the evidence adduced and the submissions filed, and the only question remaining for determination, is as to whether the Claimants have proved their case to succeed in their prayers.

Have the Claimants proved their case to succeed in their prayers.The starting point is to indicate that as a general preposition, the burden of proof in a case lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. 5. In ordinary Civil cases, courts normally determine cases in favour of the party who persuades the court that the allegations he or she has pleaded in their cases are more likely than not to be what took place. In this particular case, the Respondents from evidence on record have established their case more than the Claimants. For example, they have been able to clearly bring out the following:i.The history of the land in question and how it was subdivided from the initial 23 acres, and how their mother Naum Munyiva Kilungu ended up with the portion she had, and how the 2nd Claimant got 10 acres and 2 acres that were originally part and parcel of member number 557. ii.They have been able to raise doubt on some of the claims and/or allegations brought by the Claimants. Those doubt include:a.That the land in issue was allotted in 2012 and as such it is not correct that the Claimant had lived there from 2002 as he alleges.b.That Mwanzia Kilungu whom the claimants are claiming to be their grandfather, was actually not their father but their elder brother.c.The Sacco (Konza Ranching) being clear on membership and how through the years membership changed.d.How there were no issues or any caution to the land for all those years until after the death of same key family members.e.How the claimants have tried other avenues over the same parcel of land and they have failed in all of their efforts. There is even evidence of eviction orders.

6. Even if this Tribunal was to decide this case on a balance of probability and decide that a draw is not enough and there must be a clear winner from evidence on records, that balance of probability falls more on the side of the Respondents than on the side of the Claimants.

Final orders 7. The Amended Statement of Claim dated 13th November, 2018 is dismissed with costs to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaiOdongo Advocate holding brief for Makau Advocate for the Claimant.**HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024*