[2024] KECPT 1387 (KLR)

Mutungi v Muka Mukuu Farmer’s Co-operative Society Limited (Tribunal Case 468 of 2020) [2024] KECPT 1387 (KLR) (29 August 2024) (Judgment)

Neutral citation: [2024] KECPT 1387 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 468 of 2020

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

August 29, 2024

Between

James Musyoka Mutungi

Claimant

and

Muka Mukuu Farmer’s Co-operative Society Limited

Respondent

Judgment

1. The claim herein was brought by the Claimant vide the plaint date 21st October 2020, filed on 26th November 2020, wherein the Plaintiff prays for judgment against the Respondent/Defendant for:a.A declaration that the subject land herein plot numbers 61, 70, 82, 147, 175, 225, 242, 262 and 350 lawfully belongs to the Plaintiff.b.A permanent injunction restraining the Respondents by themselves, their agents, tenants and/or relatives and anybody else acting on their behest from evicting the Applicant herein, allocating, subdividing, curving off, settling, selling, disposing, transferring and/or in any way interfering with the subject land herein plot numbers 61, 70, 82, 147, 175, 225, 242, 262 and 350. c.Costs of this suit and interest thereond.Any other relief that the court may deem fit to grant in the circumstances.

2. The Plaintiff in support of his claim against the defendant states that at all material times the Plaintiff is the owner and/or in possession as beneficial owner of land plot numbers 61, 70, 82, 147, 175, 225, 242, 262 and 350 having lawfully and procedurally acquired the same from the defendant in 1996; that at the time of acquiring the subject land plots the Plaintiff was asked to pay an amount of Kshs. 2,710/= for each portion measuring 1. 2 acres which demand the Plaintiff complied with; that upon payment of the said price by the plaintiff the Respondent sent its surveyors to demarcate and set the boundaries of the said land parcels; that subsequently the plaintiff took over the subject land, developed it and has been working thereon since 1996 to date; that having lawfully and procedurally acquired the plots from the defendants, the plaintiff sold part of the said land to some individuals to get money to develop the remaining portions; that the Respondent is unlawfully in the process of evicting him and allocating, settling, disposing and/or transferring the subject plots to some strangers and/or third parties in total breach and disregard of the Plaintiff’s interest thereon. The Plaintiff further particularizes the breach on the part of the Respondent. Further, the Plaintiff states that his efforts to stop the defendant from interfering has not yielded any result.

3. In response to the Plaintiff’s claim, the Respondent on 5th September 2023, filed a Statement of Defence dated 1st March 2023; wherein it denies the contents of the Plaint and avers that plot numbers 61, 70, 82, 147, 175, 225, 242, 262 and 350 are owned by Stephen Muchiri Mutahi, Simon Ngigi, Safia Muhamud Ali, Joseph K. Matolo, Dickson Iswii, Magdalena Nzilani Mwema and Jacinta Kamene respectively; that the Respondent has about 2495 members with a combined shareholding totaling to 2616 and each share is entitled to a main plot, addition 1. 2 acre plot and a commercial plot at parcel number 3243; that only members of the Respondent are entitled to the aforesaid plots; that the Claimant is not a member of the Respondent.Further, the Respondent states the ownership of the plots as follows:1. That plot number 61 is owned by Stephen Muchiri Mutahi under share number 2432, having bought the same from Safia Muhamud Ali;2. That plot number 70 is owned by Simon Ngigi under share 387, the same having been transferred to James Mutua Mutiso who was allotted the parcel in 1993;3. That plot number 82 is owned by Safia Muhamud Ali;4. That plot number 147 is owned by Joseph Matolo who was allocated in 1985 under share umber 2261;5. That plot numbers 175, 242, 262 and 325 are owned by Dickson Iswii (deceased) under share number 2586 the same being replacements to main plot number 10-339 as allocated in 1990; the same having been previously under Pracxedes Kamene Iswii in 1984;6. That plot number 225 is owned by Magdalene Nzilani Mwema under share number 2401 having bought the same in 2011 from Benedetta Munee Wambua, a member and the share being under her relative Rosalia Mutindi Wambua;7. That plot number 350 is owned by Jacinta Kamene under share number 255 having been transferred by Josephat Kikaa Mutisya;

4. The Respondent states further that for one to own a plot with the Respondent, they must be a member or otherwise acquire the property from a member who owns it; that the society land is collectively owned by members and any sale by the Respondent directly to a third party must be approved through a resolution passed by its members in a general meeting; that between the years 2012-2014, it was noted that many non-members had fraudulently taken up and/or were claiming the society’s land, land held in trust for members and land already allocated to some members; that an exercise to reclaim members’ land was taken up officials and other stakeholders who discovered that the Claimant was claiming ownership of the suit properties; that through an arbitration process it was discovered that the Claimant’s beacon certificate was disowned by the surveyor and also discredited by an inquiry report; that the Claimant admitted during the arbitration that he had been conned by one major Benedict M. Muia; that the properties are developed by the members who rightfully own them and are in occupation thereof; that the Claimant is neither a member of the Respondent nor the registered owner of suit properties hence lacks the capacity to dispose any of the suit property; that on 23/10/2014, through arbitration, it was able to reclaim the plots which the Claimant had illegally made claim on in a move to ensure that all society land that had been fraudulently claimed or taken up by third parties is repossessed and availed to members who were entitled thereto; that one major Benedict M. Muia whom then the Claimant alleged to have bought the suit properties has never had any capacity to sell any property as owned by the Respondent or its members.

Claimant’s case 5. At the hearing, the Claimant adduced sworn evidence. Wherein he stated that he resided in Matungulu Sub-County, Machakos County and works as a small-scale farmer, having retired; that he bought property from the Respondent, that all the documents given to him are in the name of the society; that he paid the money within the premises of the Respondent and was issued with a receipt that he was a willing buyer and was shown the plots by the society’s surveyor; that he received the plot certificate as per exhibit “JMM4” of the Claimant’s List of Documents which bears the Respondent’s stamp; that he developed the plots by removing the sisal plantation and farming on the land; that he farmed on the properties for about 12-13 years when in 2008,, the Respondent’s Board was replaced and the chairman passed away’ that immediately thereafter, he was summoned to the Respondent’s office and was told that the land was illegally sold to him; that he did not agree that the sale was illegal and requests the Tribunal to assist him repossess the land; that he did not accept that the land was illegally sold to him; that he bought the land with clear documents.On cross-examination, the Claimant confirmed that he is not a member of the Respondent and he has never been a member; that he does not know the parcels of land members are entitled to. On being asked if he knew the process of acquiring land from the society, the Claimant stated that he was informed the land was being sold, that there was no notice to the effect that the land was on sale; that he made payment for survey fees and was issued with payment receipts produces as Claimant’s exhibit 2 of the Claimant’s list of documents; that his name does not appear on the sale agreement marked as exhibit “JMMC 3” on his list of documents; that he knows he cannot sell what he does not own. Further, the Claimant admitted on cross-examination that he admitted that he attended the arbitration session in regard to the properties; that he did not know members of the Respondent were entitled to three parcels of land; that where he lives currently is not part of the suit properties; that he farmed only 5-6 acres of the land;On matter cross-examination, the Claimant stated that he was not aware that other people had lived on the parcels of land for over 15 years; that for purposes of the properties, he used to deal with an official of the Respondent whose name he does not know. On being asked whether he had an agreement between the Respondent and himself for purchase of the land, the Claimant stated that when he went to the Respondent’s office and he was given the receipts, he was satisfied with the name as they had a stamp and letterhead. On cross-examination, the Claimant stated that he attended the arbitration but did not surrender the plots, that he did not know other people were in occupation of the plots; that Mr. Muia was the chairman of the Respondent.

Respondent’s case 6. The Respondent’s witness Peter Muli (RW 1) adduced sworn evidence in support of the Respondent’s case. The witness stated at the hearing, that the Claimant is a foreigner to the society; that the 10 plots belonged to the society and the society does not sell property to non-members; that before the committee took over, an arbitration panel was formed for the Claimant to confirm how he got the property; that the Respondent’s receipt book was with the surveyor, hence Claimant’s exhibit 4 was written survey fees; that the beacon certificates were misused t allocate land to non-members; that the beacon certificates are no longer in use pursuant to an Annual General Meeting of the Respondent; that the Respondent does not sell land to people who are not members; that non-members can only buy land from existing members; that as many plots were in the wrong hands, the board called the third parties including the Claimant to the inquiry; that the land was recovered from the Claimant and given to lawful members of the Respondent.On cross-examination, the witness stated that the arbitration panel found that the Claimant had only survey receipts; that it is not indicated in the inquiry report that the Claimant admitted to have acquired the plots illegally; that he was not the chairman at the time of the alleged transactions was Mr. Muia; whom the Claimant said to have purchased the property from; that the receipts were dated 1996; that he did not have evidence from the surveyor disowning the beacon certificates, that the society’s surveyor knew how to allocate the plots to the members; that the beacon certificates were misused by the officials when they had been voted; that the Claimant was not refunded the survey fees after repossession; that the Claimant did not pay for the plots, he paid only the survey fee.On re-examination, the witness stated that the land was the Respondent’s property and the Respondent did not transact with the Claimant; that as per the Inquiry Report, the suit properties formed part of the illegal properties; that the sake to the Claimant was not legal as he did not transact with the Respondent; that the people who sold the property to the Claimant non-member were not acting with instructions from the Respondent; that the officials get their mandate from the Annual General Meeting with minuting in the management committee meeting.

7. After the hearing, the parties filed written submissions in support of their respective cases. The Claimant’s written submissions dated 19th September 2023 were filed on 9th January 2024. The Respondent’s written submissions dated 14th December 2023 were filed on 18th December 2023. Analysis and determinationWe have considered all the pleadings and documents filed by the parties in the support of their respective cases, together with the written submissions and case law; and note that several issues arise for determination by this Tribunal;However, the issue of jurisdiction raised by the Respondent takes precedence as a preliminary issue for it is only when this Tribunal is certain that it has jurisdiction to determine this matter, that the Tribunal can proceed to determine the rest of the issues before it. This Tribunal derives jurisdiction from Section 76 of the Co-operative Tribunal Act, Cap 490; which provides under Sub-Section (i) “that any dispute concerning the business of the of a co-operative society arises among members, past members and person claiming through members, past members and deceased members, or between members, past members or deceased members and the society; or between the Society and any other Co-operative Society; it shall be referred to the Tribunal”.

8. At the hearing, even on cross-examination, the Claimant herein confirmed that he is not a member of the Respondent and he has never been a member of the Respondent, that means he is neither a member nor a past member of the Respondent in terms of the provisions of Section 76 (1) of the Co-operative Societies Act, Cap 496 of the Laws of Kenya. It therefore means that the Claimant’s claim against the Respondent does not amount to a dispute in as contemplated under Section 76 (1) (b) of the Act. It therefore follows that this Tribunal does not have jurisdiction to entertain this case. We hold reliance on the manner our decisions of the courts on the issue of jurisdiction and find that trough the issue of jurisdiction is a preliminary issue which ought to be determined at the earliest. The issue whether or not the Claimant is a past or present member of the Respondent was a matter of evidence. Indeed, the moment the Claimant declared that he was neither a member nor a past member of the Respondent, this Tribunal lost the capacity to hear the matter beyond that point; for jurisdiction is everything. As guided by the decision made by the court of appeal in (Marangi J A) Owners of the Motor Vessel “Lillians” -vs- Caltex Oil (Kenya) Ltd (1989), eKLR, this Tribunal has no power to make one more step in this case.

Upshot 9. Statement of Claim dated October 21, 2020 is found to be without merit and dismissed with costs to the Respondent.

HON. B. KIMEMIA CHAIRPERSON SIGNED 29. 8.2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024HON. BEATRICE SAWE MEMBER SIGNED 29. 8.2024HON. FRIDAH LOTUIYA MEMBER SIGNED 29. 8.2024HON. PHILIP GICHUKI MEMBER SIGNED 29. 8.2024HON. MICHAEL CHESIKAW MEMBER SIGNED 29. 8.2024HON. PAUL AOL MEMBER SIGNED 29. 8.2024Ms. Kinuthia advocate for the Respondent.Ojiando for the Claimant.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 29. 8.2024.