[2023] KECPT 1073 (KLR)

Muaya alias Rael Syombua Mutuku v Mutunga & another (Tribunal Case 62 of 2021) [2023] KECPT 1073 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1073 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 62 of 2021

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

November 30, 2023

Between

Rael Wakeli Muaya alias Rael Syombua Mutuku

Claimant

and

Mathew Muli Mutunga

1st Respondent

Simon Sila Mutunga

2nd Respondent

Judgment

Facts of the case 1. This case began way back in 2019 when the Claimant erroneously filed his Claim in Kajiado as ELC No. 133/19. That case was struck off for want of jurisdiction and redirected to this Tribunal.

2. In 2021, the Claimant moved this Tribunal stating that she is the bonafide owner of membership No. 873, share No. 883 and plot no. 11-036 within Muka Mukuu Farmers Cooperation Society Ltd. The Claimant claims that the share no. 883 and plot no. 11-036 within Muka Mukuu Farmers Co-operative Society Ltd was initially owned by her late husband Muasya Nthenge who died in 1973 and upon his death, the membership No. 873, share no 883 and plot No. 11-036 was successfully transferred to her given that she was the next of keen to her husband.

3. The Claimant accuses the Respondents’ father, Mutunga Nthenge, for fraudulently and illegally transferring her late husband’s membership No. 873, share no 883 and plot No. 11-036 to himself, and even after being ordered by Muka Mukuu Farmers Co-operative Society Ltd Arbitration Committee to return the Yellow card and identification badge, he has never honored the orders necessitating this suit.

4. The Claimant moved this Tribunal seeking the Respondents jointly and severally for;a.A declaration that the Claimant is the Sole owner of membership No. 873, share no 883 and plot No. 11-036 within Muka Mukuu Farmers Co-operative Society Ltd.b.A permanent injunction restraining the Respondents either by themselves or agents from putting up building structures, cultivating, grazing, alienating and/or interfering in any or other with the Claimant’s Plot No. 11-036 within Muka Mukuu Farmers’ Co-operative Society Ltd.c.An eviction order.d.Costs and interest of the suit.

5. On the Respondents failing to enter appearance after being served, the Claimant under Order 10 Rule 4 of the Civil Procedure Rules applied for Interlocutory Judgement on 15th April, 2021 and on the 28th April, 2021 this Tribunal entered Judgement in favor of the Claimant.

6. On 4th June 2021, the Respondents under Certificate of Urgency and under Section 1A,1B,3,3A of the Civil Procedure Act approached this This Tribunal seeking among other orders that;i.The Tribunal be pleased to set aside the ex-parte judgement entered on 28th April, 2021 and all other consequential orders made thereon.ii.Their Statement of Defence dated 20th April, 2021 be deemed as properly filed and served.

8. The said Application was grounded on the Affidavit of the 1st Respondent who Claimed that the reason they failed to enter appearance and/or file Defence was not deliberate or intentional but was because of financial constraints given the financial challenges they were experiencing as a result of their poverty levels. They were unable to pay their advocate on record on time to file Defence as a result of financial constraints. They also argued that they have a good triable Defence against the Claimant’s Claim and they will be prejudiced if the Claimant was to commence the process of execution of the judgement delivered on 28th April, 2021.

9. The Tribunal On 7th October 2021 gave the Respondents the benefit of doubt and set aside the judgement of 28th April, 2021 to allow the trial to ascertain the merits of the case.

10. The Respondents were allowed to file and serve their Defence which also had a Counter Claim to the effect that the Claimant had misled Muka Mukuu Co-operative Society Ltd to believe that she was the true owner of the share no 883 and plot No. 11-036 and also fore feigning ignorance of the Respondents’ possessory and beneficial interest of the disputed share no 883 and plot No. 11-036 as they have been in peaceful occupation of the said plot no. 11-036 without any interruption of their possession by the Claimant and/ or any other person from 1983.

11. From the Counter-Claim, the Respondents are requesting this Tribunal to declare them the Rightful owners of share No. 883 and plot no. 11-036 having acquired the same by virtue of adverse possession.

Issues for determination.i.Whether the Claimant has proved her claim and is entitled to the orders she is seeking.ii.Whether the Respondents have proved their counterclaim relating to adverse possession.

Issue One: Whether the Claimant has proved her Claim and is entitled to orders she is seeking. 12. It is important to note from the onset that the Claimant testified in person and from evidence before court, it is not in doubt that she was the wife of Muasya Nthenge who was the owner of membership No. 873, share No. 883.

13. From evidence too, we can confirm from the membership copy of records that upon Muasya Nthenge’s death, his membership was transferred to his next of Kin who is the Claimant.

14. The Claimant has also availed evidence in Court to show receipts of payment for the share certificate and the plot of land. Also before court, is evidence from the arbitration committee ordering the Respondent’s father Mutunga Nthenge to return to Muka Mukuu Farmers’ Co-operative Society Limited the late Muasya Nthenge’s yellow card and identification badge for the same to be handed back to the Claimant.

15. Having looked at the evidence presented by both parties, the Claimant and the Respondents, we are not convinced by the Respondent’s version of events – especially in relation to their father paying foe the share certificate and the plot of land, and how their father lost documentation of the same which they did not report before any government authority. As such, we find in favor of the Claimant who has supported her case by documentation and evidence.

Issue Two: Whether the Respondents have proved their counter claim relating to adverse possession. 16. It is important to note that a Claim for adverse possession has no relationship with who has the title to which land. Adverse possession essentially relates to a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya 12 years as stipulated by Section 7 of the Limitation of Actions Act.

17. For the process of adverse possession to come into effect, there must be some sort of neglect or inaction by the rightful owner of the land, the possession of the adverse possessor is not by force or under the licence of the owner. It must be adequate in continuity and publicity to show that possession is adverse to the title owner.

18. From the evidence, first it is not in dispute that the land originally belonged to Muasya Nthenge. Second it is also not in dispute that upon his death, the land was transferred to his next of Kin who is the Claimant. Third, it is also not in dispute that the Respondent’s family have been living on that piece of land in controversy.

19. From evidence, we find that the Respondents have not met the threshold for grant of orders of adverse possession as they have not satisfied the pre-requisites of:- The owner of the land omitting or neglecting to take action.-Adverse possession not being adequate in continuity.

Final orders 20. We find in favour of Claimant against Respondent and:i.We declare the Claimant, Rael Wakei Muasya, as the sole owner of membership No. 873, share No. 883 and plot no. 11-036. ii.We award the costs of the suit and interest to the Claimant.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 31. 8.2023HON. 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. PAUL AOL MEMBER SIGNED 30. 11. 2023HON. MICHAEL CHESIKAW MEMBER SIGNED 31. 8.2023Tribunal Clerk JonahMrs. Nzau advocate for the ClaimantMwangangi advocate holding brief for Mr. Odhiambo advocate for the Respondent.Mwangangi advocate: We pray for stay.Nzau advocate – They can be given 30 days for vacate the premises.Tribunal orders:30 days of execution granted.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023