[2023] KECPT 798 (KLR)

Maithya v Riakanau Cooperative Society Limited & 3 others (Tribunal Case 187 of 2021) [2023] KECPT 798 (KLR) (31 August 2023) (Judgment)

Neutral citation: [2023] KECPT 798 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 187 of 2021

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

August 31, 2023

Between

Alexander Steppen Maithya

Claimant

and

Riakanau Cooperative Society Limited & 3 others

Respondent

Judgment

1. Matter for determination is Statement of Claim dated 8. 3.2021 filed on 13. 8.2021. The Claimant avers that on 30. 5.94 the Claimant applied to purchased a full share to the 1st Respondent Claimant paid Kshs. 100,000/= as consideration for purchase of the shares.Respondent via letter dated 30. 12. 94 allotted plot number 20885/11 to the Respondent Land Parcel LR. 99442R, 3516RE, 1986R.On 28. 5.1996 Claimant bought shares owned by Esther Waiyua Kisoa and transfer effected and Respondent issued Share Certificate to the Claimant in respect to the shares.On 30. 12. 1994 the 1st Respondent allotted plot number 20885/43 to Claimant Land Reference.LR 9442R, 3516RE, 1986R.

2. Claimant avers despite title deeds being processed the Respondent has unlawfully refused to released the title deeds to plots 20885/11 and 20885/43. The claimant prayers are for:a.A mandatory order to compel the respondents to release within a set timeline the title deeds in respect of plot numbers 20885/11 and 20885/43 measuring 23 acres each duly registered the name of the Claimant to the Claimant.b.Special damages of Kshs. 35,000/=.c.General damages for breach of contractd.Costs of this suit.e.Interest on (b) (c) and (d) above at commercial ratesThe Claimant filed List of Documents dated 8. 3.2021 and it included:a.Application for purchase of shares by Claimant to the Chairman Riakanau Cooperative Society dated 30th may 1994. b.Receipt numbers 89,91 and 98 issued by the 1st Respondent for purchase of shares.c.Letter of allotment dated 30th December 1994 for plot number 208885/11 together with annexed deed plan issued by the 1st Respondent to the Claimant.d.Agreement dated 28. 5.1996 for purchase of shares in Riakanau Cooperative Society limited owned by Esther Waiyua Kisoa by the Claimant.e.Receipt dated 28. 5.96 issued by Karuga Wandai and Company Advocates for purchase of shares in 4 above.f.Letter dated 22. 9.1995 from Esther Waiyua Kisoa to the 1st Respondent confirming sale of her shares to the claimant.g.Letter dated 26. 9.1995 form the 1st Respondent to Esther Waiyua Kisoa consenting to sale of her shares in the Society to the Claimant.h.Share Certificate issued by the 1st Respondent to the Claimant after transfer of shares in 7 above.i.Letter of allotment form the Respondent to the Claimant dated 30. 12. 1994 allotting to the Claimant the plot number 20885/43 in respect of shares purchased form Esther Waiyua Kisoa together with annexed deed plan.j.Receipts dated 11. 9.1996 in payment for registration of titles to the plot numbers 208885/43 paid to the 1st Respondents advocates.k.Various correspondences between the Claimant the Kenya National Commission on human rights and the 2nd and 4th Respondents in connection with the matter the subject of this suit.

3. The Respondent despite service failed to enter appearance and a such default judgment was entered on 9. 6.2021 and matter fixed for Formal Proof hearing.Hearing was on 18. 4.2023 where CW1 Alexander Stephen Maithya adopted his witness statement dated 21. 3.2023 filed on 17. 4.2023 as his evidence in chief.He produced his List of Documents dated 8. 3.2020 as evidence.He further added he was given all documents and allotment letter.His name was left out by the new office bearers 1st Respondent is the one who is in possession.

4. Having considered pleading, documents and evidence by CW1. We are to determine if indeed the land in question belongs to the Claimant herein.It is unfortunate the Respondent’s herein and moreso 1st Respondent ignored summons and did not enter appearance in this matter.We have pursued the Claimant’s documents in regard to this claim. We have looked into the sale agreement between Esther Waiyua Kisoa and Alexander Stephen Maithya who the vendor (Esther Waiyua Kisoa) was a member of Riakanau Cooperative Society and consideration for 23 acres was for Kshs. 241,500/= and attached is an acknowledgement of receipt.Other than receipts from 1st Respondent which date from the year 1994-1996 some were paid to J.K. Njamongo and company advocates both for 11. 9.96 receipt number 517 and 518 for registration of title number 20885/11 and 20885/43 respectively.

5. The chairman of Riakahau Cooperative Society then wrote to the vendor and member Esther Waiyua Kisoa on 26. 9.95 acknowledging he letter of 22. 9.1995 and stated they had no objection to her selling her shares to Mr. Alexander Stephen Marithya.On 30. 12. 1994 Riakanau Farmers Cooperative Society gave a letter of allotment to Alexander Maithya. The 1st Respondent offered hum plot 20885/11 and on the same day 30. 12. 1994 issued another letter of allotment to Alexander Stephen Maithya plot number 20885/43.

6. With the Claimant’s claim and evidence being uncontroverted how then can we not agree with his averments with all evidence supporting his claim?As such we find in favour of Claimant against 1st 2nd 3rd and 4th Respondent and order as follow.a.An order to issue for the 1st 2nd and 3rd and 4th Respondent to process and release title deeds for plot number 20885/11 and 20885/43 being registered in the name of Alexander Stephen Marithya 60 days from date of this judgment.b.Prayer for Special Damages and General Damages fails as the same were not supported.c.Cost and interest in the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 31ST DAY OF AUGUST, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023HON. BEATRICE SAWE MEMBER SIGNED 31. 8.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 31. 8.2023HON. PHILIP GICHUKI MEMBER SIGNED 31. 8.2023HON. MICHAEL CHESIKAW MEMBER Signed 31. 8.2023HON. PAUL AOL MEMBER SIGNED 31. 8.2023Tribunal Clerk JemimahJudgment delivered in absence of parties.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 31. 8.2023