[2024] KECPT 905 (KLR)

Ndegwa v Methi & Swani Coop. Sacco Limited (Tribunal Case 478 of 2011) [2024] KECPT 905 (KLR) (Civ) (30 May 2024) (Judgment)

Neutral citation: [2024] KECPT 905 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 478 of 2011

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

May 30, 2024

Between

Daina Wanjiku Ndegwa

Claimant

and

Methi & Swani Coop. Sacco Limited

Respondent

Judgment

1. The Claimant’s case is based on an Amended Statement of Claim dated 12/9/2021, Claimant’s Witness Statement, the Claimant’s Documents and the hearing of the case and subsequent submissions.

2. In her Amended Statement of Claim, the Claimant states that she is a member of the Respondent and that around 1984, she subscribed to and paid her share in the 1st Respondent and got certificate number 3369 for one share.She states that in 1988, she was given plot number 1932. She states that the Respondent has delayed in giving her title for the plot.She later discovered that her plot was sold by the 1st Respondent. She states that such sale, if any would be illegal.She further states that the 1st Respondent has failed to rectify this illegality.

3. In his Witness Statement, Mr. James Kariuki Ndegwa suing as legal representative of Diana Wanjiku Ndegwa (deceased) stated that the deceased mother paid Kshs. 224/= as survey and poles for her plot. Upon completion of requisite payments for the plot, the Claimant was issued share certificate number 3369.

4. The 1st Respondent allocated the Claimant the portion of land after paying Kshs. 500/= as survey fees. The 1st Respondent was also issued with official card of ownership plot number 1932.

5. In 2011 the Claimant discovered the said plot was sold to the 2nd to the 6th Respondents.The Claimant states that during the various reconciliatory meetings, the 1st Respondent had acknowledged in allocating the deceased’s plot to 2nd – 6th Respondent but the situation was not rectified.Efforts to further reconcile and rectify the situation including recording statement at Makuyu Police Station did not bear any fruits, hence coming to this court to seek ownership of plot 1932.

6. The Claimant has produced documents dated 17/20/2023 to support his case. Among the documents are Grant Letters of Administration, share certificate number 3369, 1st Respondent member’s register, 1st Respondent’s title report of 15/8/2011, 1st Respondent map bearing member’s plot numbers and survey map, land surveyors report of 20/1/2023, Co-operative Tribunal order of 16/3/2012 and bundle of receipts issued to Harisson Mwangi Kiarie in respect to Title number Mitubiri/Wempa/Bk. 2/2286 among others.

7. During the hearing of the claimant’s case on 8/11/2023, the CW3 adopted his Witness Statement dated 11/11/2021 and documents dated 17/20/2023 as his Evidence- in -Chief.He stated that he was the son to the late Diana Wanjiku Ndegwa, now deceased.He stated that his late mother was a member and shareholder of the 1st Respondent. He stated that his late mother had the following documents from the 1st Respondent.a.Ballotb.Share certificate and other documents as filed in court.He stated that his mother’s plot was number 1932 given in the 1970s. he stated that his mother had paid everything.He stated that plot 1932 was shown to his mother by the Management Committee in his presence.He stated that despite not having a title for the plot they are farming in it.He stated that their plot was invaded by someone in 2011. The invader claimed he had bought the plot.He stated that their mother had not sold the plot and that they had the documents with them.He stated that the invaders included a Mr. Muriu who was his neighbor and the 4th Respondent.He confirmed that their mother died in 2014. The Claimant clarified that he was born in 1971 and that he knows the plot well.CW1 was Mr. Morris Gatungu, a Surveyor from Muranga County.He stated that he was in court to defend his report on physical location on plot Mitubini/Block 2 number 2283.

8. In his report dated 20/1/2023, he confirmed that the plot in question exists both on the ground and on paper.He confirmed that the plot size is ½ acre (0. 202 ha). He stated that the report was not developed by the time of writing his report. He stated that the plot was subdivided into two ¼ plots.

9. Claimant Witness number 2 E. M. Mbuthia was a Land Registrar based in Muranga.He confirmed details on the plot in question as hereunder. Plot number 2283.

1st green card entry 8/2/11

2nd green card entry 23/1/2014 issued to the self-help group.

Caution by James Kariuki (Claimant).

He stated that members register from the 1st Respondent landed in Land’s office for issuance of title deeds.He stated that name in the register was self-help group, handwritten and not typed.The entry in the register was done in 2014 while most titles were issued in 2011. He stated that the self-help group was a 1st owner of plot no. 2283. He stated that there was a possibility of double allocations. He also stated that the 1st Respondent is under liquidation.

10. CW4 was Mr. Harrison Mwangi Kiarie who adopted his Witness Statement of 25/9/2023 as his evidence. He stated that he had filed a List of Documents dated 25/9/2022. He stated that he knew the Claimant and that the Claimant used to farm in the plot in question.He stated he has plot number 1937 which he got from a Madam Teresa in 1996. He stated that he Knew Diana but more the husband. He stated that they were neighbors.He stated that among the Respondents, he only knew Mr. Muriu who is a carpenter. He stated that plot number 1932 belongs to Diana.He confirmed that he got his title in 2011. He denied knowledge of the self-help group.

11. In his Written Claimant’s Submissions of 8/1/2024, the Claimant states that the Respondents illegally alienated the suit property on 23/1/2014 by processing title deed number Mitubini/Wempa/BK. 2/2283 in the names of Respondent 2nd, 3rd and 4th in the names of an unknown Jaguar Self Help group.He states that the Claimant is claiming Plot number 1932B while the Respondents are talking about 1932. He states that the issues for determination are.i.Whether the Claimant has demonstrated that the suit property belongs to Diana Wanjiku Ndegwa (Deceased).ii.Whether the Claimant has met the threshold for grant of permanent injunction.He states that the 2nd to 6th Respondent filed no Defence but in their Replying Affidavit sworn in by the 2nd Respondent on 30/4/2012, they state that plot number 1232 B from one Serah Wairimu Theuri on 29/4/2010 under the names of Jaguar Development Cooperative.He observes that the 2nd to 6th Respondent filed no Defence or Witness Statements in this suit. Their advocates filed list and bundle of documents dated 3/4/2012 and Supplementary List of 6/9/2012. Neither did they testify during the hearing of the case.He stated that plot 1932 B does not exist.He also states that the Liquidator, Mr. Suleiman Wandati unequivocally admitted that only 1932 exists in the 1st Respondent’s records.The liquidator confirmed the plot 1932 was suspiciously allocated different title deeds 2283 and 1841, a situation he claimed was strange.The liquidator stated that all title deeds issued to the original 1st Respondent members was issued in 2011 and thus any titles issued after this date were as a result of transfer to 3rd party through sale or otherwise.He states that the land registrar (Claimant Witness 2) testified in court and stated that title deed for Mitubini/Wempa/BK. 2/2283 was issued in respect of plot number 1932 and not 1932 B as allocated by the 2nd -6th Respondent.He reiterates the Claimant prayers as contained in the statement of Claim.He states that the Respondent did not satisfy the burden to their allegation that they took plot 1932 B and not plot 1932. He states that the alleged plot 1932 B does not exist on the ground thus the Respondent are fraudulent in their scheme to dispossess the Claimant.He states that the 2nd to 6th Respondents were not original members of the 1st Respondent and there was no evidence of sale or payment to the alleged seller Sera Wairimu Theuri.

12. While the 1st Respondent was put in liquidation in 2014 the 1st Respondent former officials wrote to the land registrar on 23/1/2014, purportedly instructing the land registrar to issue title deed in respect of the suit property.He observes that a title was issued during the pendency of this court and blatant violation of this Tribunal’s orders of injunction.

Respondent’s Case. 13. The Respondent’s case is based on the following: Respondent’s Defence Statement of 18/10/2011.

Respondent’s List of documents dated 16/4/12 and 6/9/2021.

Written Submissions of 2nd, 3rd, 4th, 5th and 6th Respondents dated 14/5/2012.

The Respondents did not call any witnesses during the hearing of the suit on 8/11/2023.

14. In their Defence Statement dated 16/4/2012, the 1st Respondent states that as per its records, plot number 1932 B belongs to the self-help group whose officials are 2nd, 3rd, 4th, 5th and 6th Respondent while plot 1932 belongs to the Claimant. They state that the Self Help group has original ballot, share certificate and receipts.They state that if the Claimant is a shareholder, she can only get another plot elsewhere but not the suit plot.The Respondents filed the following documents in support of their case: Original register.

Survey register, Wemba Block Z Land Register 4903/5 Numbers 717-2573.

Map sheet.

Liquidation order of the 1st Respondent dated 13/7/2023.

2nd, 3rd, 4th and 5th Respondent documents dated 6/9/2021

Authority to process title.

Copy of title deed for Matubini/Wempa/Block Z/ 2283

Copy of RIM map.

In his Respondent Written Submissions, the liquidator Mr. Suleiman Wandati narrates the process of Liquidation.He states that the Commissioner of Co-operative Development appointed a liquidator of the 1st Respondent in 2014 and that the former committee headed over the running of the 1st Respondent to the liquidator.He states that the register in his possession in the original (restructured) one after the original was destroyed by time.He states that as per their register plot 1932 is allocated twice as follows.i.Ballot number 1932 – Title number 1841 in name of Diana Wanjiku Ndegwa – later cancelled and issued to Maina Kigo, Later cancelled and issued to Joyce Njoki Maina.ii.Ballot no 1932 B allocated to title 2283 and registered in the name of Jaguar development.Restates that all titles in the Respondent register were issued in 2011 and any letter issued was as a result of transfer to 3rd party.Registration of title deeds number 2283 and 1841is not systematic and is suspicious.

15. The Respondent did not present Witnesses in court but filed Written Submissions in respect of the following. 1st Respondent dated 7/5/12.

2nd, 3rd, 4th, 5th, and 6th Respondents dated 14/5/2012.

The 1st Respondent submits that they are processing title deeds in the name of the applicant on the strength of plot number 1932 B.They submit that this suit was unnecessary since the 1st Respondent is processing titles for all bonafide members including the Claimant.The 2nd, 3rd, 4th, 5th and 6th Respondents oppose the Application vide their replying affidavit of 30/4/2012.

Analysis. 16. From the Statements by both parties, documents filed in this Court and the hearing of the suit with Written Submissions by all the parties, we observe the following.a.The Claimant has produced enough evidence through the Statements, hearing, Submissions to prove she was an original member of the 1st Respondent.b.It has also emerged from all the parties that titles for the original members were given in 2011. Any subsequent issue was either a sale or transfer. This in essence means the Respondent’s transaction came after 2011 and no evidence of sale has been filed hence the issuance of their title deed suspend. The liquidator confirmed that any issuance of title deeds after 2011 is either transfer or sale.

The Respondents did not file any evidence of sale or transfer of the plot in suit.

The land registrar, Claimant Witness number 2 confirmed the existence of the suit plot number 2283 both on the ground and on paper.

The same Claimant witness number 2 confirmed that the green card 2nd entry in 2014 was to the Respondent, but there was no evidence of sale or transfer.

Claimant Witness number 2 stated that the entry in the register in respect to the suit plot was handwritten and not typed like the others. This created suspicion in this entry.

He also stated that the Self-Help group was indicated as 1st owner of the Suit plot which was not possible.

* It is evident that the Respondents processed the title in 2014 when the Liquidator had already taken over the management of the 1st Respondent.

17. We observe that the Liquidator stated that title for Mutubiri/Wempa/BK.2 2283 was issued in respect to 1932 and not 1932 B as alluded by the Respondents.

Final Orders 18. In view of the facts and pleadings during the hearing of the suit, this Tribunal is convinced that the Claimant has adequately prosecuted her case and pass judgment in favour of the Claimant against the Respondent for:a.An injunction to restrain the Respondents their servants and/or agents from entering into the said plot with the intent to construct and/or erecting any building and/or structure.b.A declaration that the said property belongs to the claimant.c.Possession of the said property granted to Claimant.d.Costs of this suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF MAY, 2024. Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024Hon. Beatrice Sawe Member Signed 30. 5.2024Hon. Fridah Lotuiya Member Signed 30. 5.2024Hon. Philip Gichuki Member Signed 30. 5.2024Hon. Michael Chesikaw Member Signed 30. 5.2024Hon. Paul Aol Member Signed 30. 5.2024Tribunal Clerk JonahNgugi advocate holding brief for Ms. Kariuki for the ClaimantMethi and Swani Coop. Society- No appearance.Hon. J. Mwatsama Deputy Chairperson Signed 30. 5.2024