[2023] KECPT 1043 (KLR)

Nthakyo v Kathekakai Farmers Co-operative Society Limited (Tribunal Case 331 (E121) of 2021) [2023] KECPT 1043 (KLR) (Civ) (30 November 2023) (Judgment)

Neutral citation: [2023] KECPT 1043 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 331 (E121) of 2021

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

November 30, 2023

(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.)

Between

Nzioka Nthakyo

Claimant

and

Kathekakai Farmers Co-operative Society Limited

Respondent

Judgment

1. The claim herein was brought by the claimant vide the Statement of claim dated 7th June, 2021, filed on 2nd August, 2021. In the Statement of claim, the claimant states that at all times material to this suit, he was a member of the respondent having joined on 10th May, 1979 and became member number 159. The claimant states further that the respondent passed a resolution to allocate its members land and plots; that in addition to agricultural land, each member was allocated two plots; that allocation was by way of balloting and each member was allocated a plot as per the number on the ballot paper he or she picked. The claimant further states that he balloted and one of the plots he was allocated plot number 20 at Vota marked within Machakos Kai Block 5/21 measuring 25 by 100; that in May ,2021 one Dominick Musembi alleged security of the respondent and one Sunny Kasaire allegedly stopped the claimant from developing the said plot on allegations that the land was public land. The claimant accuses the respondent, its agents, officials or persons claiming under it of fraud, particulars of which are set out under paragraph 9 of the Statement of claim.The claimant alleges in his pleading the respondent’s illegal and fraudulent activities that as a result, he has suffered loss and damage as follows: -a.The value of the land being Kshs. 2,500,000/=b.The value of materials of Kshs. 90,000/=The claimant states that he issued Demand Notice and Notice of Intention to sue before he filed the claim, demanding for payment.The claimant prays for judgement against the respondent for:a.A declaration the all known as plot number 20 at Vota Market within Machakos/Katheka Kai Block 5/21 measuring 25 by 100ft, belongs to the claimant and the respondent do issue him with a title deed.b.That in the alternative to prayer ‘(a)’ above, a declaration do issue that the claimant is entitled to be compensated by the respondent in the sum of Kshs. 2,509,000/= in place or plot number 20 at Vota Market within Machakos Katheka Kai Block 5/21 measuring 25 by 100 ft and the same paid by the respondent.c.Costs and interest of the suit.d.Any other rand further relief that this Honourable Court may deem fit to grant.

2. The respondent defended the claim by way of a Statement of Defence dated 23rd August,2021, filed on 9th September, 2021. In this Defence, the respondent denies the claimant’s Allegations made in the Statement of claim against the respondent; and accuses the claimant of non-disclosure of material facts as the claimant was not an ordinary member but a member of the Management Committee of the respondent who served three times from the years 1998 to 2016. The respondent further denies having allocated additional plots and/or allocating plots through balloting that it did not allocate plot number 20 as alleged by the claimant; that the claimant was allocated the same number of plots as every other member and he is trying to claim an additional plot that is not rightfully his; that it did not convert the subject plot from private to public land and denies that the particulars of fraud cited against by the claimant; relating further that the claimant is the one guilty of fraudulently acquiring property through his position in the Management Committee; with full knowledge of the committee declaring the public land to have a cattle dip.The respondent avers no Demand and Notice of Intention to sue was given to the respondent and finally prays that the claim is struck out and dismissed with costs to the respondent. On 11th February, 2022, the claimant filed a reply to Defence dated 21st January, 2021, wherein he reiterated the contents of the Statement of claim and denies the content of the respondent’s Statement of Defence.

Evidence at the Hearing: - claimant’s Case. 3. The claimant adduced sworn evidence in support of his case stating that he is a mason by profession and his plot in Kathakai Society is number 20. The claimant also produced and relied on his witness statement dated 7th June, 2021 filed on 2nd August, 2021 and his Evidence- in -Chief. He also produced his List of Documents dated 7th June, 2021 making the Bundle of Documents therein as claimant’s exhibit1 a-i. He also asked the court to grant him prayers in the Statement of claim.On Cross-Examination, the claimant stated that there was a ballot given to him by the society. He stated that the Surveyor prepared the map and that the plots in that area do not have titles.The claimant on further cross-examination admitted being the Chairman of the Society but denies using his influence to allocate himself the plot without members’ knowledge. The claimant further stated on further cross-examination, that there were minutes to show he was allocated the plot; however, on being asked whether the said minutes were part of his evidence in the case, he said they were not, further he admitted that he has never filed a suit against the person named Susan Kasaire and any public officers. On re-examination the claimant states that the evidence that he was allocated the plot is the ballot.

respondent’s Case. 4. The first witness of the respondent, Amos James Kariuki produced and adopted his Witness Statement dated 7th November,2022 filed on 14th December,2022 as Evidence-in-Chief. The said witness also produced the respondent’s List of Witnesses dated 16th December, 2022, filed on 6th June, 2023 and marked the documents respondent exhibit 1a-d.On cross-examination, the said respondent Witness 1 confirmed that the claimant was a member of the respondent and added that the claimant was not an ordinary member of the respondent; but the Chairman of the Supervising Committee; who oversees the ruling of management; that the members of Management Committees were entitled to get plots like other members, that there were no additional plots and that the claimant was given the same number of plots as other members. According to the witness, every member got one plot. On further cross-examination, however, he admitted that he had not brought evidence to show which plot belonged to the claimant. On Re-examination the witness stated that the plot being claimed by the claimant in this suit is different from the one he was allocated.The respondent’s second witness, Dominic Musembi Mueni respondent Witness 2 produced and adopted his Witness Statement dated 16th December, 2022, filed on 6th June, 2023 as his Evidence -in- Chief; and stated that he relied on the respondent’s List of Documents dated 16th December, 2022, filed on 6th June, 2023. On cross-examination, the witness stated that the claimant deserted his duties as the Chairman of the Supervisory Committee; that the claimant was allocated a plot as a member; that the claimant was allocated plot number 5 which he gifted to his son, however, the witness admitted he did not have any evidence to show that the claimant was allotted the said plot number 5. The parties filed Written Submissions pursuant to the hearing of the case. The claimant’s Submissions dated 3rd August, 2023, were filed on 4th August, 2023, while the respondent’s Submissions dated 18th September, 2023 were filed on 31st October, 2023.

5. We have considered the pleadings of the parties, the oral evidence adduced before the Tribunal and the Written Submissions and proceed to make our determination.Analysis and determination.It is not in dispute that the claimant was at all material times a member of the respondent. it is also not in dispute that the claimant was entitled to the same land size and plot as other members.The issues we must determine are:1. Whether or not every member of the respondent was entitled to two plots by the respondent.2. Whether or not the claimant was allocated plot number 20. 3.Whether fraud was committed in respect to the subject plot.4. Whether or not the claimant is entitled to the reliefs soughtWe shall deal with all the issues at once.1. Neither the claimant nor the respondent produced any documentary evidence before the Tribunal to prove the entitlement of the members of the respondent in terms of land and plot allotment.What we have before us is the word of the claimant that every member was entitled to two plots, as against the respondents’ word that every member was entitled one plot. It is the Law, that he who makes allegations must prove the allegation. It therefore follows that the claimant was required to prove his allegations that every member of the respondent was allocated 2 plots. We note from the evidence adduced at the hearing that the claimant was a chairman of the supervisory committee hence well aware of the decision making process for several years. However, he was unable to produce as evidence any minutes, by-laws or other documentary evidence to prove that every member had been entitled to two plots. The claimant has failed to discharge the onus on a balance of probability. We are therefore disagreeing with the claimant and find that he could not have allotted two plots by the respondent.2. The claimant’s case is that he was allotted plot number 20 as an additional plots that is to say as a second plot. However, the claimant has not produced any document in support of the allotment . same for the ballot, which on cross-examination he admitted that it was not stamped by the respondent. Without any evidence in support of the claim that the ballot was the only mode of allotment of the plots we are unable to agree with the claimant in this regard. High Court Civil Appeal No. E018 of 2021 (Nyahururu) (Judgement of Justice T. Kariuki) among 14 other cases and maintain that a party must discharge the onus of proof on any allegation of fact or law. Having already arrived at the conclusion that the claimant did not prove that he was entitled to allocation of two plots, we also find that he has not proved that he was allocated plot number 20. 3.We rely on facts parties herein pleaded fraud against the other party. In our view, neither party.Rule 6 of the Co-operative Tribunal (Practice and Procedure) Rules, provides that in the proceedings before the Tribunal, the provisions of the Civil procedure Act and Rules shall apply Mutati Mutandis.The Civil procedure Rules require parties to suit to state a very explicit case of fraud or illegality or rather facts of suggesting fraud or illegality.In the Nairobi High Court civil Suit No.- 1700 of 2001 the Court held it its Ruling (Kuloba J.) that the allegation should not be general, vague or evasive “but some actual fact or circumstances which taken together imply or at least, very strongly suggest, that a fraud or illegality must have been committed; those facts being assumed to be true. Having found herein before that the claimant has not proved that he was not entitled to two plots and having also found that he was not allocated plot number 20, we find that the allegations of fraud cited by the claimant against the respondent must fail for lack of sufficient evidence and having been disproved by the respondent.On the other hand, the claimant’s failure to provide evidence of allotment of plot number 20 leaves a lot of question about is claim; as he has not demonstrated clearly how and when the land was allocated to him, why the deed plan produced in his evidence is not registered among other matters which would in their totality lead to an inference that there was a fraud or that a fraud was about to be committed.We shall not belabor the issue any further.4. From our foregoing analysis, it is our finding that the claimant has not proved his claim against the respondent to the required standard of a balance of probability. We hereby dismiss the claimant’s claim with costs to the respondent.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 30. 11. 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. MICHAEL CHESIKAW MEMBER SIGNED 30. 11. 2023HON. PAUL AOL MEMBER SIGNED 30. 11. 2023TRIBUNAL CLERK JONAHMS. MUTHONI ADVOCATE FOR THE claimANT.MS. ONDARA ADVOCATE HOLDING BRIEF FOR MR. NYANDIEKA ADVOCATE FOR THE respondent.MUTHONI ADVOCATE : WE PRAY FOR STAY ON COSTS.ONDARA ADVOCATE- NO OBJECTIONTRIBUNAL ORDER:30 DAYS STAY OF EXECUTION ON COSTS.HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 30. 11. 2023