[2024] KECPT 1693 (KLR)

Mwanzo (Suing as an Administrator of the Estate of Granton Mwakio Mwamburi - (Deceased)) v Railways Housing Co-operative Society Limited (Tribunal Case 710 of 2016) [2024] KECPT 1693 (KLR) (3 October 2024) (Ruling)

Neutral citation: [2024] KECPT 1693 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 710 of 2016

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

October 3, 2024

Between

Teresia Mkawasi Mwanzo

Claimant

Suing as an Administrator of the Estate of Granton Mwakio Mwamburi - (Deceased)

and

Railways Housing Co-operative Society Limited

Respondent

Ruling

1. This ruling dispenses the Notice of Motion Application dated 18th July 2023. The Application is supported by an affidavit sworn by one BENSON MBUTHIA NJIRU Advocate and brought under Article 159(2) (b), Sections 28(6) & (7) of the Co-operative Societies Act and Rule 11 of the Co-operative Tribunal (Practice and Procedures) Rules, 2009. The Application seeks the following orders:a.That this Honourable court be pleased to imprison for a period of 6 months, the Executive Committee Members of the Judgment Debtor Composed of:a.Francis Kamau- Chairmanb.John Mriba – Vice chairmanc.Aggrey Ogutu – Treasurer andd.Abraham Kiptoo- Secretaryb.That this Tribunal be pleased to direct the Commissioner to suspend from duty the above committee members while serving their term in prison.c.That costs of this application.

2. The Application is premised on the grounds on its face which are inter alia that: The Committee members has failed, declined and/or refused to make good the Judgement of this Tribunal delivered on 12th July 2017.

3. The brief background of this matter is that this court passed a judgement on 12th July, 2017 directing the judgement debtor to transfer Plot No. 10426 or an equivalent to the Claimant. It’s the Applicants claim that the Judgement Debtor has failed, refused or declined to comply with the judgement.

4. Both parties filed their submissions in respect of the Application.

5. In their submissions, the Applicants submit that the judgment debtor sought to offer the decree holder a parcel of land but the parcel of land is in Kajiado as opposed to Athi River where the Plot No. 10426 is situated. It is the Applicant’s contention that the word “equivalent’ as used in this context means a parcel of land within the same location as the claim parcel of land, and not anywhere in the Country.

6. The Respondents, in their submissions, submitted that the Committee members have not failed, declined or refused to obey the judgement of this Tribunal because they have offered an equivalent parcel of land to the Claimant but the Claimant has since refused to accept the same. They contend that the Respondent is willing and able to transfer the parcel of land L.R 10426 to the Applicant, but the same is a subject matter in ELC No. 224 of 2009 at Machakos Law Courts. That the Respondent will only be able to transfer the parcel to the Applicant once Ndatani Enterprises Company and Taifa Consultants Company Limited transfers the same to it, and that there is already a consent to that effect.

Analysis 7. This Tribunal has noted the Application, responses and the submissions with regards to this Application. It is not in dispute that judgment was entered in favour of the Claimant as against the Respondent. It is also not in dispute that in the judgement, the Judgement Debtor was ordered to transfer to the Decree Holder the land subject to the suit, or an equivalent parcel. Further, it is not in dispute that the judgement debtor offered an alternative parcel of land in Kajiado but the Applicant has denied or refused the same because it is not in Athi River where the suit property was located.

8. The question before this Tribunal is whether the Applicants are entitled to the reliefs sought, to wit the arrest of the management committee, and to direct the commissioner to suspend them from duty.

9. To answer the question, this court needs to determine whether offering a piece of land in another location from the location of the suit property is in contempt of the court order herein. The Judgement orders for the transfer of the suit property to the Applicant, or another equivalent piece of land. We therefore, ask ourselves, is the land that was offered equivalent to parcel of land L.R 10426?

10. To determine whether the parcels of land are equivalent we have to answer what equivalent means. Cambridge Dictionary defines the word equivalent to mean “having the same amount, value, purpose, qualities…….” Other dictionaries define the term as “something that performs substantially the same function as another thing”. From these definitions, we can infer that equivalent can mean the same in something. Something that can be used in place of another thing. In this case we have not been informed by either parties how equivalent, or not equivalent these two pieces of land. The only reason that the Decree Holder gave for not accepting the property is because the land in situated in Kajiado and not in Athi River. Without any justification or reasons why the Decree Holder prefers Athi River and not Kajiado this court cannot make a decision on this matter. This court cannot give orders in vain. Therefore, it is not anticipated that this court ordered an alternative piece of land in Athi River, yet it did not know whether the Judgement Debtor had land in Athi River.

11. It is trite law that whoever alleges should prove his allegations. In this matter, it is the Claimants duty to show this court how the two parcels of land are not equivalent. Location alone is not enough to show that two parcels of land are not equivalent. There has to be another measure such as value, size, accessibility, suitability of the intended venture, or even the terrain of the land among other factors. For this matter to be determined, this court would need more information on the two parcels of land, which the Claimant has not.

12. In the upshot of the foregoing, we find that the Applicant’s Application lacks merit and is hereby dismissed with costs to the Respondent.

File closed.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF OCTOBER, 2024. HON. B. KIMEMIA CHAIRPERSON SIGNED 3. 10. 2024HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 3. 10. 2024HON. BEATRICE SAWE MEMBER SIGNED 3. 10. 2024HON. FRIDAH LOTUIYA MEMBER SIGNED 3. 10. 2024HON. PHILIP GICHUKI MEMBER SIGNED 3. 10. 2024HON. MICHAEL CHESIKAW MEMBER SIGNED 3. 10. 2024HON. PAUL AOL MEMBER SIGNED 3. 10. 2024Tribunal Clerk MutaiMbuthia advocate for Claimant/ApplicantKamunde advocate for the Respondent- No appearance