[2025] KECPT 238 (KLR)

Ngugi v Kariobangi Housing Settlement Sacco Ltd & another (Tribunal Case 188/E248 of 2022) [2025] KECPT 238 (KLR) (27 March 2025) (Judgment)

Neutral citation: [2025] KECPT 238 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 188/E248 of 2022

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

March 27, 2025

Between

Patricia Wambui Ngugi

Claimant

and

Kariobangi Housing Settlement Sacco Ltd & another & another & another

Respondent

(Coram: Hon. B. Kimemia- Chairperson, Hon. J. Mwatsama- Deputy Chairperson, Hon. B. Sawe- Member, Hon. F. Lotuiya- Member, Hon.P. Gichuki- Member, Hon. M. Chesikaw- Member and Hon. P. Aol- Member.)

Judgment

1. The genesis of this judgement is as a result of a disagreement of ownership of plot No 133A within Kariobangi Housing Settlement Scheme between the Claimants and the Respondents herein

Background Of The Dispute 2. The 1st Claimant state under paragraph 4 of her statement that she is member no 374 of the 1st Respondent since 1989. The course of her occupation of the plot she constructed some semi- Permanent Structures for rentals On 18th March 2022 the structures were razed down before a mysterious fire which gutted the entire structure leaving the plot empty When the son of the 1st Claimant herein referred to as the 2nd Claimant attempted to reconstruct some structures in the plot the 1st and 2nd stopped him

3. The Respondents denied that the 1st Claimant is member No. 374 and they aver that it belonged to one Mr. James Kimondo who was allocated plot No 364. They further stated that the 2nd Claimant is not a member of the 1st Respondent and that he lacks Locus Standi in this suit regarding plot No. 133A the Respondents deny the existence of such a plot but acknowledge the fact they allowed their members to occupy L.R. NO 220/4 although it has not been formerly sub-divided.

4. According to the 2nd Respondent, the plot where the fire razes down some structures is plot No 367 which belong to one Wambui Kiritu from 1967. To support this, the Respondent filed unclear photocopies of the members Register and paginated it from No. 1 to No. 131.

5. Resulting from the disputed as to ownership of the plot where the fire razed down the Claimants filed a statement of claim and a Notice of Motion both dated on 24th March 2022 seeking for a temporary order of injunction to stop the Respondents from interfering with their continuous occupation of the plot.

6. On 20/04/2022, the tribunal admitted the parties as follows;i.That the application dated 24/03/2022 be held in abeyance to enable the parties to fast track the hearing process.

The Claimants Case 7. The 1st Claimant stated that she is a member of the Respondent and has been in possession of the burnt down plot for the last 36 years. It was a testimony that prior to the demise of her husband, she had bought 4 plots from Kariobangi housing and gave me one plot as his wife. She confirmed that it was her husband who gave out her name to the Sacco when asked whether she remembered that these was a case regarding the same plot she confirmed that there was but the court entered judgement in her favour.She did not know M/s Wambui Kiritu who according to the Respondent is the Owner of the plot which was burnt.

8. The 2nd Claimant stated that she is the son of Patricia the 1st Claimant with authority from her to give evidence in this suit that with the authority of his mother in 1989 he entered into the plot in dispute and constructed semi- permanent buildings for rent. These semi structures were burnt down on 18th March 2022 and when he went in to reconstruct, he was stopped by the 1st and the 2nd Respondent.That his mother plot was originally no. 374 which was later changed to No. 133A

9. The Claimants Witness named Jemimah Wambui Njeri stated that the plot belongs No. 133A/374 Belong to the 1st and the Claimant

10. That at the time of allocation of the plots, she was a committee member of the Respondent while being a committee member she remembered that the husband of the 1st Claimant had a case/ dispute with Wambui Kiritu of which the committee checked the registers and determined that the plot under dispute belongs to Ngugi Muiruri who was the husband to the 1st Claimant.

Respondent’S Case 11. The 2nd Respondent stated that she is the chairperson of the 1st Respondent since 2006 to date.She started by stating that the plot belongs to Wambui Kiritu who had bought it from a person she did not know she further stated that plot no. 133A was not built and belong to Kimani Njoroge member N0. 253. She maintained that Patricia Wambui Ngugi is not a member of the 1st respondent although her husband was a member No. 343.

12. Finally, it was her testimony that she restrained the Claimants from rebuilding the plot because according to the Respondents Register plot belongs to Wambui Kiritu. When asked why Wambui Kiritu or dependants have not laid a Claim over this plot or defend this suit. She did not have an answer.

Analysis 13. We have had the benefit to read through the parties statement, examined the registers filed by both parties, listened to the parties and their witnesses in full hearing and finally read their witnesses in a full hearing and finally their witness submissions. The issues for our determination are;i.Whether the Claimant are members of the Respondentsii.Whether the 2nd Respondent is acting for the 1st respondent or making the defence on own behalfiii.Whether plot no.133A or 367 within L.R.NO 220/4 Belong To The 1st Claimant or to the late Wambui Kiritu.

Whether the Claimants are members of the Respondents? 14. Although the parties did not file the Saccos by laws regarding the treatment of the new plots who were not originally members but bought those plots we note from the Response to the claim that under buys a plot from a member of the Sacco, he/she automatically takes over the plot and the membership.

15. Specifically, paragraph 6(b) reads“The said James Kimondo transferred his share to his daughter who in turn sold and transferred her interest (emphasis ours) to one Hannah Wanjiru Muchai the present owner of plot No. 364”The register filed by the Respondents do not indicate any changes. However, in view of the above it is the opinion of the tribunal that when a member sells his/her plot it looks like she either exits the Sacco to give way to the buyer as a new member or retains membership for any other reason

16. Flowing from the above, we note from the register filed by Claimant’s that when the late husband of the 1st Claimant gave her his plot she was admitted into the membership of the Sacco and allocated member no.367. we have examined the two (2) registers and have no reason to doubt her membership in the Sacco. We therefore confirm that the 1st claimant is a member of the Sacco.

17. Regarding the 2nd Claimant, we note he bought several plots from the members of the Sacco. Under paragraph 6 and 7 of his further supporting affidavit he states as follows;Paragraph 6 .......”I am a member of the 1st Respondent by purchasing shareholding from the original shareholders of the Sacco e.g. I own plot No. 72 by Virtue of having purchased the share of Kimani Ritho”Paragraph 7 ...... “That for also own plot no 50 having bought shareholding from one Stephen Muthira Mugo yet the persons reflected against the said plot are Wachene Waikama and Wachera Kangethe’’

18. The above statements by the 2nd Claimant has not been controverted by the Respondent and therefore remains factual.it is therefore our finding that the 2nd Claimant is a member of the Sacco.

19. Resulting from the finding that the 1st and the 2nd Claimants are Members of the 1st Respondent, they therefore moved the Tribunal in their individual rights as members and thus have the Locus Standi to sue the Respondents.Whether the 2nd Respondent is acting for the 1st respondent or making a difference on her own behalf.

20. In her testimony the 2nd Respondent stated in her Replying Affidavit and during the full hearing of the suit that she is the chairperson of the 1st Respondent. although she stated that she did not know why she was sued in her personal capacity, the Claimants answered that they opted to sue her because she prevented them from reconstructing the burnt down structure

21. However, we note with disatification that these was no objection from the 1st Respondents to exclude her from the suit, although they raised the same issue in their written submissions under paragraph 4 where they submitted as follows;paragraph 4“although the 1st Respondent is a limited liability entity separate from its members and/or officials, the 2nd respondent has been sued in her capacity as Chairperson of the 1st Respondent…….we submit that there is no reasonable claim against the 2nd respondent and her name should be struck out from the Suit.”

22. The above submission should have been preceded by an objection from the beginning which was not done. This is clear example of the phrase that “one appear when the horse has bolted from the staple. “The Claimants state that they sued her in personal capacity because she stopped them from reconstructing and became according to her, the particular plot belongs to one Wambui kiritu who although she is deceased, she could have been represented by her dependants or heirs.

23. Under the circumstances we find the interference of the 2nd Respondent to be unwarranted. If she genuinely wanted to help the family of the late Wambui kiritu nothing stopped her from looking for her dependants or heirs to come forth and defend the suit. Consequently, we order that the 2nd Respondent to stop interfering with the claimants activities in the guise of defending a member who could be rightly defended by her dependants.Whether plot No. 133A or 367 within L.R.No 220/4 belong to the 1st Claimant or the late Wambui Kiritu

24. The evidence in form of witness statements by M/s Jemimah Wambui Njeri dated 26/4/2022 Zipporah Muthoni and Ndungu Nduati dated 26/4/2022 all point to one thing “the plot No.367 and plot No. 133A belong to the family of Ngugi Muiruri.”At the same time, the 1st Claimant is the wife of the late Ngugi Muiruri and the 2nd Claimant is his Son. The letter from the Chief of Kiganjo Location dated 13th June, 2022 confirmed this assertion.

25. Of particular interest is the oral testimony of M/s Jemimah Wambui (former committee member) during the full hearing where she confirmed the contents of her witness statement which run similar to the other witnesses.At paragraph 7 she states as follows;“.... when a dispute arises regarding a particular plot, the resident results to approaching old members to tell them who was the original of such a plot asking from neighbours, looking at who is in occupation or has been utilizing such a plot and for the present dispute all past offices have always come to the conclusion that the family of Ngugi Muiruri is the true genuine owners of the plot in dispute”

26. At the full hearing the Tribunal established that the Claimants have been in occupation for more than 30 years without any disturbance or interference from the Respondents. We note that the family of Wambui Kiritu filed a case in 2007 but abandoned it and it was dismissed for want of prosecution.In view of the foregoing and having considered all factors regarding this case, we find that Patricia Wambui Ngugi and by extension her son are the rightful owners of plot refered to as No. 133A and/or 367.

27. In conclusion, we hereby enter judgement in favour of the Claimants against the Respondents with cost and interest. Judgement is entered in favour of Claimants against Respondents and we declare Patricia Wambui Ngugi is the rightful owner of Plot No. 133A and or 367.

Respondents to bear costs of the suit.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF MARCH, 2025. Hon. B. Kimemia Chairperson Signed 27. 3.2025Hon. J. Mwatsama Deputy Chairperson Signed 27. 3.2025Hon. Beatrice Sawe Member Signed 27. 3.2025Hon. Fridah Lotuiya Member Signed 27. 3.2025Hon. Philip Gichuki Member Signed 27. 3.2025Hon. Michael Chesikaw Member Signed 27. 3.2025Tribunal Clerk JonahGachoki Mwangi advocate for the ClaimantAmunga advocate for the Respondent –none appearanceHon. J. Mwatsama Deputy Chairperson Signed 27. 3.2025