[2023] KECPT 1080 (KLR)

Kioko & another v Muka Mukuu Farmers Cooperative Society (Tribunal Case 391 of 2018) [2023] KECPT 1080 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1080 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 391 of 2018

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

November 30, 2023

Between

Bonface Kioko

1st Claimant

Bernard Mutuku kioko (Suing as the legal representatives of the Estate of Kioko Lola (Deceased)

2nd Claimant

and

Muka Mukuu Farmers Cooperative Society

Respondent

Judgment

1. The matter for determination is brought vide an Amended Statement of Claim dated 24/9/2020 filed on 28/9/2020. The Claimant avers he was the son of Kioko Lola (Deceased), who was a registered member of the Respondent under number 633 Muka Mukuu Farmers’ Cooperative Society and held share number 638 in respect of plot no 15-192 and addition Plot no Game 188 situated in Donyo Sabuk, Kagondo. The Claimant avers the Defendant transferred Shares no 638 and Plot no 15-192. The Respondent however declines to have the additional Plot no Game 188 and failed to grant her vacant possession. The Respondent has declined to register Claimant as the beneficial owner and threatened to commence transfer to a different person.The Claimant prays for:a.A declaration that the Deceased was the legal and/or beneficial owner of Plot no Game 188 situated in Donyo Sabuk, Kagundo.b.A permanent injunction restraining the Respondent by themselves, servants, agents and/ or any other person(s) purporting to derive right of entry from the Respondent from trespassing, selling, alienating and/ or in any other way whatsoever interfering with the Estate of the Deceased possession, occupation and/ or quiet enjoyment of Plot no Game 188 situated in Donyo Sabuk, Kagundo.c.Mesne profits.d.Costs of incidental to the proceedings.e.Interests on (e) and (f) above at tribunal rates.f.Any other or further order that this Tribunal may deem fit and just to grant.

2. The Respondent filed an Amended Statement of Defence dated 8/10/2021 filed on 12/10/2021 and denied the Claimant’s Claims. The Respondent admitted Plot no 15-192 belonged to the Claimant’s husband, however, the Claimant’s late husband, that is, Kioko Lola, sold his interest of the additional Plot no 25 to Alice Munene Nzau on 5/12/2995 for share 638. Further the Respondent avers that the Claimant had a mediation process through the Society’s Arbitration panel to hear disputes and matters.The Claimant filed List of Documents dated 23/2/2021 filed on 25/2/2021 which included:1. Share transfer from the share no 639 dated 2/12/1999. 2.Sale of land agreement dated 28/11/1999 for Plot no Game 188. 3.Beacon certificate dated 12/10/1996 for Plot no Game 188. 4.Plot records for share no 639 and share no 638. 5.Decision of the Arbitration panel on ownership of Plot no Game 188. 6.Letter to deputy county commissioner dated 8/3/2017 on Game Central Farm Plot 188 ownership.7. Letter to commissioner for cooperative development dated 10/02/2017 on Plot no Game 188. 8.Letter to Officer Commanding Station Donyo Sabuk Police Station dated 15/11/2015 on Plot no Game 188 ownership.9. Report dated 2/1/2018 on clarification for additional plots for share no 638 and 639.

3. The matter came for hearing on 6/9/2023, Claimant Witness 1 – Boniface Kioko who adopted their Witness Statement dated 24/9/2020 and Further Witness Statement dated 4/11/2021 and adopted their List of Documents.He claimed the father was a member of Mukaa Mukuu farmers Game 188 and had a ­­­bonus. The Respondent has refused to give them the bonus plan. On cross examination, he confirmed they received the main Plot no 15/92. He confirmed they had talks with Respondent about Plots no Game 188, but did not agree with the findings. He clarified that by the time the father was passing away, the plot was not used as their farm was far from their home.

4. The Respondent called Respondent Witness 1 – Peter Mulili to give evidence. He adopted his Witness Statement dated 23/2/2021 and further Witness Statement dated 1/7/2022 as his Evidence -in-Chief he confirmed and stated Plot no Game 188 belonged to Margaret Juma Kioko. She sold it to a 3rd party. Respondent Witness 1 confirmed to late Kioko Katunya was assigned Kayata 25 and he sold the same to Alice Nzau as per Respondents Exhibit 10. During the Arbitration process, it was confirmed that Kioko Lola allocated Kayata 25 and parties ought to remain with the plots as their current positions.

5. On cross examination, Respondent Witness 1 confirmed bonus plots were issued to all members. He confirmed the Claimant was issued Plot Kayata 25 and survey conducted on bonus Plot no Game 188. He clarified the receipts produced by Claimant, that is, Claimants exhibits 11 and 12 do not tell the purpose of the survey.He further stated that the additional plot given to Kioko Lola was sold to Alica Nzau and there even transfer forms produced as evidence. Respondent Witness 1 also clarified when an audit report was done in 2013 as per Claimant Exhibit 6 and exhibit 36, the said report was marred by errors and irregularities and the same were corrected by the officials.Respondent Witness 1 clarified the rightful owner of Plot no Game 188 is John Oleso.

6. Parties were directed to file Written Submissions with Claimant filing Written Submissions dated 6th October, 2023 and Respondents filed Written Submissions dated 11/10/2023 on an even date.The Respondent also filed the share register, Special Audit dated 31/12/2013 and report dated 30/1/2016 on Mukaa Mukuu Farmers’ Cooperative Society Limited.Upon considering all the above as were evidence adduced during trial, the issue for determination is;

Issue One; Whether the Claimant Owns Plot No Game 188?It is not in dispute that the Claimant’s father Kioko Lola (Deceased) was a member of the Respondent and was entitled to a bonus plot.It is also not in dispute that the deceased was allocated the bonus plot no Game 188. According to the documents as filed by the Respondents – Muka Mukuu Farmers’ Cooperative Society Limited, Share Register Special Audit Report dated 31/12/2013 filed on 27/9/2023. Page 10 of 38 member no 633 Kioko Lola of Share no 638 got plot 15-192 on 28/10/2013 and bonus plot of 1. 2 acres Game 188. 7The Claimant clearly demonstrated the land belongs to his farther. However, the Respondent avers that the Late Kioko Lola sold the portion of land and produced transfer forms to that effect which was Respondent Exhibit.All along, the late Kioko Lola had sold his bonus plot no Game 188. In essence from Respondent Witness 1’s evidence, the plot was sold to Alice Munene Nzau which was Kayata no 25 and Game Central 188 was sold to Margaret Juma, that is, Kioko Mutunga.The question that begs an answer which Claimant did not respond is why they took so long to occupy the land and want to reclaim it at this time? His clarification that the land was too far unfortunately does not hold water and we, the Tribunal take it with a pinch of salt.

8. All along, the bonus parcels were occupied uninterrupted for years and this would only mean that the Claimant’s father sold the land. We are satisfied with the explanation from the Respondent Witness 1 and further the fact that the matter was taken for arbitration and when the outcome was not in Claimant’s favor, he opted to bring claim against the Respondent at the Tribunal.

9. We shall not be led into their intricacies of how the arbitration was done and who were present and whether it was procedural and proper.The Claimant did not raise the issues when he attended the same or when the exercise was being done. He can not only wolf at the stage. With this in mind, we indeed find that the land Plot no Game 188 Oldonyo Sabuk, Kangundo belongs to someone else and not the Claimant. The land was rightfully allocated to them. However, there was a transfer of the land as the current owners have been there uninterrupted and can only know the land was sold to them.

UpshotWe find the claimant has not proved his Claim and as such, the same fails.Claim is dismissed with costs to the Respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023HON. BEATRICE SAWE MEMBER SIGNED 30. 11. 2023HON. FRIDAH LOTUIYA MEMBER SIGNED 30. 11. 2023HON. PHILIP GICHUKI MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023In presnce of:-Ms. Kinuthia advocate for the RespondentNgure advocate holding brief for Uvyu advocate for the Claimant.