[2024] KECPT 1501 (KLR)

Mathenge v Marmanet Co-operative Society Limited (Tribunal Case 524/E308 of 2021) [2024] KECPT 1501 (KLR) (26 September 2024) (Judgment)

Neutral citation: [2024] KECPT 1501 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 524/E308 of 2021

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

September 26, 2024

Between

Simeon Peter Miano Mathenge

Claimant

and

Marmanet Co-operative Society Limited

Respondent

Judgment

Claimant’s Case. 1. The Claimant’s case is based on the following: Statement of Claim dated 2/11/2021.

Claimant Witness Statement dated 2/11/2021.

Claimants List of Authorities.

Hearing on 23/4/2024.

Claimant’s Witness.

Submissions dated 16/5/2024.

In the statement of Claim, the Claimant states that he is a member of the Respondent and that, around 30/8/2000 the Respondent transferred plot no. 9 out of plot no 3 Marmanet to the Claimant to settle a debt arising from Nyahururu PNCL No. 63 of 2000 Marmanet Service Station versus Marmanet FCS LTD.He avers that he was a director of Marmanet Service Station which was loaned by the Respondent. It was agreed that the Respondent sell the Claimant plot no. 9 out of Marmanet plot no. 3 for Kshs. 80,000/=.He states that since 2001, he has been pursuing this matter virtually in all offices, the last being the Commissioner for Cooperative Development where he was advised to file this case.He avers that the Respondent has denied him possession of the land by delaying the suit plot to him.

2. In his Witness Statement, the Claimant he avers that he is a member of the Respondent at the time of filing this Claim. He states that on 30/8/2000, the Respondent agreed to transfer the suit plot to him out of a debt that arose from a suit in PMCC No. 63, Nyahururu.He avers that he was a Director of Marmanet Service Station which was owed by the Respondent.He states that despite the Respondent agreeing to transfer the suit plot to him, they have been adamant to date. He avers that since 2001, he has been pursuing this matter to no avail.

3. The Claimant advocate had filed authorities in this case and requests for fast tracking of transfer process, among others.During the hearing of the Claimant’s case on 12/3/2024, the Claimant adopted his statement dated 2/1/2021 and documents dated 3/9/2021 as his Evidence- in -Chief.He stated that he is a member of the Respondent having bought his farm in 1974. He confirmed that his wife owed Marmanet Service Station and the Respondent was their customer. He admitted that he sued the Respondent for non-payment of suppliers wherein they admitted to pay but did not, hence this case.He stated that the Respondent approached the Claimant to buy the suit plot to repay the debt, which he agreed. He states that he paid Kshs. 80,000/= for the plot but the transfer of the plot to the Claimant was never done, neither was a refund done.He states that from around 2015, the Respondent started indicating that I had no plot. He prays this court to assist him get his plot and any rent if it is there.

4. On cross-examination, the Claimant admits there was a letter on the sale of the plot. He also admitted that he had not filed his membership card with the Respondent.He also admitted not having the minutes of the Respondent that approved the sale of the suit plot. He stated that he did not know or attend the said Annual General Meeting.The Claimant also explained why he had to report his case to several government offices, including EACC and the Commissioner for Cooperatives.

5. On re-examination the Claimant explained he bought plot because the Respondent wanted to sell to clear debts. He also confirmed signing the agreement letter and the stamp is for the Respondent.He stated that he was in court as a person and bit as a Marmanet Service Station.In his Written Submissions dated 16/5/2024, the Claimant explained how the Respondent fell into debt with the Claimant following a decree in Nyahururu PMCC No. 63 of 2000 Marmanet Service station Versus Marmanet Farmers’ Cooperative Society.He states that on 30/8/2000, the claimant and the Respondent executed a sale agreement for the Respondent to transfer the suit plot on a result of the debt owed to the Claimant.He states that he paid the Respondent the agreed Kshs. 800,000/= and the same receipted.He states that the Respondent has never denied receiving the Kshs. 80,000/= but has been adamant to facilitate the transfer.He states that despite having paid the contractual amount, he has never been allowed to develop the suit plot.He states that there exists a valid contract between the Claimant and the Respondent’s letter of offer of 19/7/2000 which the Claimant accepted and paid Kshs. 80,000/= as agreed upon.He states that the Respondent acknowledges receipt of the contractual sum of Kshs. 80,000/= on 25/7/2000. He states that the sale was approved vide min/3/2000 of members meeting held on 30/6/2000. He states that the Respondent has not pleaded nor proved any vitiating factors to the agreement of sale dated 19/7/2000 neither does the Respondent deny entering into the sale agreement.

Respondent’s Case.The Respondent case is based on the following: Respondent Statement dated 19/7/2023

Witness Statement of 19/7/2023

List of Documents of 19/7/2023

Hearing on 23/4/2024

Respondent’s Written Submissions of 28/6/2024. 6. In the Respondent’s statement, the Respondent Mr. John G. Kirathe confirmed he was the Chairperson of the Respondent and denied that the Claimant purchased the suit plot and that the suit plot has never been sub-divided on the ground. He also denies that the Cooperative Society, the Respondent agreed to settle the Nyahururu PMCC No. 63 of 2000 with the Claimant in exchange of the suit plot.He states that the previous management were aware that the members of the Respondent were opposed to the sale and that if the sale took place it was not ratified by the members.He declares that the purported sale was null and void.He denies there is a plot known as plot 9 on the ground and that the Claim is based on non-existent plot.The Respondent has filed on 19/7/2023 documents to support its Defence to the Claim.

7. These documents include: Special resolution of 4/2/2022

Allotment letter of 18/7/2022

Letters of diverse dates between 1994 and 2021.

The Respondent vide letter to the Claimant advocate dated 2/9/2015 denies knowledge of the sale of plot between the Claimant and Respondent since there were no documents in the Respondent office of the same.He has also filed a letter of 23/2/1994 to the then Chairman of the Respondent on behalf of the members to stop sale of the community plot.During the hearing of the case on 23/4/2024, the Respondent witness Mr. John Kirathe adopted his statement of 19/7/2023 and list of documents of 19/7/2023 as his evidence in chief.He confirmed knowing the Claimant as their former. He states that the Respondent have no land to sell. He averred that the referred Sale Agreement was fake.He stated that the Respondent can’t sell any plot without the President’s approval. He stated that the Respondent’s Lawyers wrote to the Claimant to state that they can’t sell the plot.

8. On cross-examination, he stated that there were no beacons on the ground hence can’t pinpoint where the suit plot is on the ground. He stated that there were many traders on the ground and that he had no powers to give out plots.He also stated that the traders on the plot were authorized by the former Chairman.The witness stated that he took over from the former Chairman in 2014 and have been trying to evict the traders on the suit plot without avail.He denies ever seeing the sale agreement neither the receipt of Kshs. 80,000/=.He stated that he took over an office without documents.On re-examination, the Respondent stated that there was no document to show that the suit plot was owned by the Claimant.During clarification by the Bench, the Respondent stated that the plot was owned by the Respondent. He stated that the suit property will not be sold.He explained that the suit property was within the Marmanet township and measured 3 acres, he clarified that the Claimant was claiming 50metres by 100 metres from the plot which is not even subdivided.He denied knowledge of the Petrol Station debt since he became chairman since 2014.

9. In the Respondent’s Written Submissions dated 28/6/2024, the Respondent requests this court to determine the following:a.Whether plot no. 3 was available for sale to the Claimant.b.Whether the contract is null and void.c.Whether the Claimant is entitled to the reliefs sought.d.Costs of the suit.As regards the availability of the plot for sale to the Claimant, the Respondent states that the plot was not for sale and that if there was to be sale, such action would have to be approved by the President.The Respondent states that the land was never alienated, legally surveyed or subdivided thus not capable to be on sale.He stated that the Claimant was not truthful when he produced a letter in court indicating that he bought the plot through auction but not producing evidence to the same.The Respondent submits that the contract between the Claimant and the Respondent is null and void.The Respondent submits that the subject land was not sub-divided and even if it was, due procedure was not followed, citing Section 4(1) (a) of the Limitations of Actions Act.The Respondent further Submits that no minutes were tabled in Court to indicate member of the Respondent had agreed to sell the suit land.

Analysis. 10. We observe that the issue for this Court to determine as contained in the Claimant’s prayers include inter alia:a.A permanent injunction barring the Respondent … plot No. 9 measuring 20 by 100 out of plot No. 3, Marmanet.b.Order to compel the Respondents to process title deed on plot no. 9 measuring 50 by 100 on plot no. 3, Marmanet.c.In the alternative to (b), the land registrar Nyahururu be compelled to issue title to the suit plot to the Claimant at the Respondent’s costs for plot no 9 measuring 50 by 100 out of plot no. 3, Marmanet.

11. As regards prayers (a) above, we find that the Claimant has not demonstrated adequately that there is plot no. 9 on the ground. He has not produced adequate documents to show that indeed plot no. 9 was legally alienated, surveyed and sub-divided from the plot no. 3, Marmanet, in brief, the Claimant has not proved the existence of plot no. 9 on the ground.

12. We also observe that even if such sub-division was done, there is no evidence in Court to show that the Respondent’s decision-making organ, the Annual General Meeting or Special General Meeting gave approval to sell the suit plot.In a Cooperative Society Situation, Such an action would have required authority from the members through an Annual General Meeting or Special General Meeting.

13. We also observe that the alleged debt owed to the Respondent was from Marmanet Service station and not the Claimant. Whereas the Claimant states that he is the director of the Petrol Station, no evidence has been filed in court to show that he was suing on behalf of the Petrol Station.And in this regard therefore, we observe that the Claimant’s claim that the sale of plot 9 was a result of a debt that arose as a result of Nyahururu PMCC no. 63 of 2000, Marmanet Service Station vs Marmanet Farmers’ Cooperative Society Limited, this scenario demonstrates that the Claimant was not indebted to the Respondent rather it was the Petrol Station which is a totally different entity.

14. It is also observed that the current management Committee vehemently denies that there is any law available to the Claimant. They also categorically state that there is no approval from the members of the Respondent.

15. We also note that the Claimant has stated that the Respondent approached him to buy the suit plot in order to clear the debt owed to the petrol station. Here, we reiterate that there is a total separation between the Claimant and the Petrol Station and the debt issue was between the Respondent and Petrol Station.The Respondent states that what is filed in Court is fake and that it is just a letter.We are also wondering how the Respondent would have offered the suit plot before it was subdivided and approval given by the members.

Conclusion. 16. We are persuaded that the Respondent has defended his case adequately by proving that in a Co-operative Society context, the members approval through Annual General Meeting or Special General Meeting was critical as regards this case.Further, the Respondent has proved that the Claimant was a Separate entity from the debtor, the petrol station and that they had not surveyed alienated or subdivided the suit plot.The Claimant on the other hand has not proved evidence on whose authority he was acting on when offering to buy the suit property to offset the Respondent’s loan with the petrol station.The Claimant has not provided evidence to show that there was legal authority from the membership of the Respondent either through an Annual General Meeting or Special General Meeting.It would have been expected that being a law transaction, the Claimant should have done due diligence to confirm if such authority was given.

17. We also note that the Claimant was advised vide letter dated 2/9/2015 from the Respondent that there were no plots available for sale.On 22/2/1994, the Respondents were also warned by the Advocate of the members of the Respondents that any sale of plots within the Respondent Community land plot no. 3 Marmanet.In view of the foregoing, the Court dismisses the Claim in its entirety.Each party to bear its own costs.The claim dated 2. 11. 2021 has no merit and as such claim is dismissed with no orders as to costs.

JUDGMENTSIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 26TH DAY OF SEPTEMBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 26. 9.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024HON. BEATRICE SAWE MEMBER SIGNED 26. 9.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 26. 9.2024HON. PHILIP GICHUKI MEMBER SIGNED 26. 9.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 26. 9.2024HON. PAUL AOL MEMBER SIGNED 26. 9.2024TRIBUNAL CLERK MUTAIMs. Karue advocate holding brief for Mr. Chimei for the ClaimantGakenia Gicheru advocate for the RespondentHON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 26. 9.2024