[2024] KECPT 228 (KLR)

Nyala Sacco Society Limited v Kinyua; Njiiri (Applicant) (Tribunal Case 393 of 2019) [2024] KECPT 228 (KLR) (7 March 2024) (Ruling)

Neutral citation: [2024] KECPT 228 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 393 of 2019

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

March 7, 2024

Between

Nyala Sacco Society Limited

Claimant

and

Benson Kamau Kinyua

Respondent

and

Vicky Wanjiru Njiiri

Applicant

Ruling

1. The matter before us for determination is the interested party’s Application dated 6th March, 2023, filed on 11th March, 2023. Therein the interested party prays for orders: -1. Spent.2. That the Honorable Court be pleased to join Vickyt Wanjiru Njiiri as an interested party.3. That pending the hearing and determination of this Application inter-parties, the Honorable Court do issue interim orders of stay of execution of the orders issued on 20th January, 2023. 4. That this Honorable Court be pleased to vary, review or set aside the orders issued on 30th January, 2023.

5. That the Honorable Court be pleased to lift the prohibitory orders on land parcel no. Laikipia/ngobit Supuko Block2/3991(Wiyumiririe) issued on 30th July 2019.

6. Costs of this Application be provided for.

2. The premised on the grounds on the face of the Application and on supported by the Affidavit sworn by the Interested Party sworn on 6th March, 2023 and filed on 14th March, 2022.

3. The grounds stated are: -1. That the Claimant misrepresented to the Tribunal that the Respondent, one Benson Kamau Kinyua was the registered owner of land parcel no. Laikipia/ngobit Supuko Block2/3991(Wiyumiririe).2. That all along, the Applicant herein has been the registered owner of land parcel no. Laikipia/ngobit Supuko Block2/3991(Wiyumiririe).3. That at no time has the Respondent been registered owner of the Parcel no. Laikipia/ngobit SupukoBlock2/3991(wiyumiririe).4. That the Claimant’s representation caused the land to be forfeited to the Claimant in realization of a loan amount owned to them by the Respondent.5. That the Applicant was never made a party to the proceedings being the registered owner of the suit land hence she was condemned unheard.6. That the Claimant is on the verge of illegally transferring the Applicant’s property to one Rita Karimi Njeru after having successfully conducted a public auction.7. That there was no privity of Contract between the Applicant and the Claimant.8. That it is in the best interest of Justice that the orders sought be granted to avoid infringing the Applicant’s right of ownership in contravention of the Kenya Constitution 2010.

4. In the Supporting Affidavit, the Applicant states that she is the registered owner of the subject property herein and that a transaction she commenced on 7th August, 2018 could not be completed due to the existence of a prohibitory order lodged on the title on 16th September, 2022, pursuant to the Tribunal order issued in this case; that on following up at the Tribunal registry, she discovered that the Claimant had sued the Respondent for the recovery; that she discovered that the Claimant had informed the court that the Respondent was the registered owner of Land Parcel No. Laikipia/ngobit Supuko Block 2/3991(wiyumiririe); that she was not notified of the Tribunal suit, neither was the Respondent; that the Claimant cannot seek to dispose of land her when she was neither a party to the Contract or a borrower, nor a party to the proceedings; that the Respondent has never been a registered owner of the subject land parcel.

5. The Application is opposed by the Claimant vide a Replying Affidavit sworn by Paul W. Muthu on 14th April 2023 and filed on 25th April, 2023.

6. In opposition of the Application, the deponent states: -1. That the Application is bad in law, incompetent, and an abuse of the Tribunal proceedings and devoid of merit,2. That the Applicant has misled the Tribunal to win sympathy,3. That the Tribunal lacks jurisdiction to determine ownership of Laikipia/ngobit Supuko Block 2/3991(wiyumiririe)4. That the Tribunal is functus officio in the matter hence lacking jurisdiction ,5. That the Respondent has not demonstrated the interest she has in the current claim, and as such has not met the well settled principles of being enjoined in the suit as an interested party.6. That by a loan application dated 31st July, 2019, the Respondent was advanced the sum of Kshs. 375,000/= and that he utilized the said money to purchase the parcel Laikipia/ngobit Supuko Block 2/3991(Wiyumiririe)7. That the Claimant was aware of the loan and that the Claimant did not contribute any money towards purchase of the land,8. That upon verification, the purchase price was paid in full by the Respondent,9. That the seller of the land to the Respondent, on Michael Wachira Thiga did not sigh any transfer in respect to the subject land to the Respondent or any other person.10. That the Respondent was served by way of substituted service and he did not respond; consequently, judgement was entered in favour of the Claimant and a decree and Certificate of costs was issued and the Claimant instituted execution proceedings for the sale of the subject property and on 9th February, 2022, a public auction was conducted wherein the highest bidder was Rita Karimi Njeru.11. That the purported sale of the land by the Applicant is an afterthought and it has been overtaken by events as the said parcel of land was sold by public auction.

7. The Application was canvassed by way of Written Submissions of the parties.

8. The Applicant filed Written Submissions dated 18th April, 2023 and further Written Submissions dated 23rd May, 2023; while The Claimant filed Written Submissions dated 26th September, 2024

Analysis and Determination. 9. We have considered all the documents filed by the Claimant and the Applicant in this matter. We find and address several issues below: -

1. Whether the Tribunal has jurisdiction to determine the issue of ownership of land. 11. In our view, the issue to be addresses by us is whether or not the Applicant has brought a land ownership claim for determination by the Tribunal or whether the matter before us is for determination of ownership.

12. From the Application and Supporting Affidavit, it is clear that the Applicant states that she is the registered owner of the parcel known as Laikipia/ngobit Supuko Block 2/3991(wiyumiririe); that the property was attached and sold in execution of a decree without notice to her or her being included in the case. In support of her statement, the Applicant produced a copy of title and a certificate of official search and prayed that she be enjoined as an interested party to the suit.

13. The Claimant produced a copy of an Application form indicating the Respondent’s next of Kin as the Applicant herein, stating her relationship with the Respondent as ‘wife’. The Claimant has also produced a copy of land sale agreement in which the purchasers are indicated as Benson Kamau Kinyua (Respondent) and Vicky Wanjiru Njri. Further in her Supporting Affidavit, the Applicant states at Paragraph 2 that the Respondent is her husband who is now deceased as the issue of death is uncontroverted. It goes without say therefore that from the onset, both the Applicant and the Respondent were joint buyers of the property, it also goes without say that as per the Land Act, the Respondent and Applicant shared equal ownership and undivided right in the property and as pertains such joint ownership of land, the ownership doctrine in the event of demise of one or the joint owners …

14. The fact that the Applicant is the registered owner of the land parcel and was a purchaser to begin with, means that the matter before us is not a land ownership dispute.

2. As to whether the matter herein concern the business of the society under Section 76 of the Cooperative Societies Act: 15. We have already found that this is not a land ownership dispute since as per the sale agreement and title documents, and the Law on joint ownership, the Applicant has approached the Tribunal as the registered owner of the land. The next question is whether the issues raised by the Applicant concern the business of the Cooperative Society and form a dispute under the Act.

16. The case herein was filed by the Society against its past, now alleged deceased member, for recovery of a loan amount and the current Application arises out of the execution of a decree against it past, now alleged deceased member. As such it is a case concerning the business of the Society.

16. The Applicant has an interest in the case herein, just as person who would be sued or would claim through the past and/ or deceased member of the Respondent herein being the next of Kin and wife and secondly as joint purchaser in the agreement.

Whether or not the Tribunal is Functus Officio as far as this case is concerned. 17. The Applicant’s Application is for review of orders issued by the Tribunal as against the subject property herein in execution proceedings. Whereas the Tribunal is functus officio as regards the suit for claim of loan money from the Respondent, and whereas there is no appeal against the execution orders of the Tribunal, it means that the same can be subjected to review thereof in terms of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules 2010.

18. It is our view that since the attachment and auction of the property herein affected the proprietary right if the Applicant and her right as next of Kin and wife to the Respondent, the Applicant ought to have been enjoined to the suit at the beginning of the execution proceedings herein; otherwise, the property known as Parcel No. Laikipia/ngobit Supuko Block 2/3991(wiyumiririe) should not have been attached in execution of the Tribunal orders in the first place. This is because on the face of the Agreement for Sale, the purchaser includes the Applicant a fact which the Claimant has not mentioned or addressed in its Affidavit or submissions. We also note that the property herein was not charged by the Respondent as a security to the loan hence there was need to notify the Applicant of the execution proceedings. It would have been valuable for us to have a sight of the Death Certificate of the deceased as it may have been useful in our determination of come issues herein and also the effect of the said death on the status of the case herein

4. On whether the Application of review was filed too late: 19. We are not a court of technicalities. As such we rely on the provisions of Article 15 a of the Constitution and Rule 4 of the Cooperative Tribunal (Practice and Procedure) Rules; 2009 and find that the Applicant has sufficient reason for her review and she should not be condemned unheard.

20. We place reliance on the Court of Appeal decision in Shanzu Investments Limited vs Commissioner For Lands (Civil Appeal no. 100 of 1993). Also, on the Court of Appeal’s decision in Pancrast Swai Vs Kenya Breweries Limited (2014)eKLR.

21. In the latter decision, which echoes the decision made in the first case, the Court of Appeal Held: -Order 44 Rule (1) (now Order 45 Rule 1 in the 2010 Civil Procedure Rules) gave the trial court discretionary power to allow review on three limps therein stated or “for any sufficient reason” … as repeatedly pointed out in various decisions of this court, the words, “for any sufficient reason” must be viewed in the context firstly, of Section 80 of the Civil Procedure Act Cap 21, which confers an unfettered right to apply for review and secondly, on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order.”

22. We have read various decisions of the Court is Appeal on the conferment of unfettered discretionary powers to the trial court and find that it refers to court’s unfettered discretion to make such order as it thinks fit on review and that the omission of any qualifying words in Section 80 which was deliberate.

23. The upshot of all the foregoing is that we find the Applicant’s Application dated 6th March, 2023 to be partly merited and order as follows:1. That we decline to enjoin the Applicant as an Interested Party.2. That the orders of the Tribunal issued on 30th January 2023 are set aside in terms of prayer 2 thereof.( where the Tribunal had dispensed with production of the original title deed of the subject property while effecting its transfer to Rita Karimi Njeru).3. That the prohibitory order on Laikipia/ngobit Supuko Block 2/3991(Wiyumiririe) is hereby lifted.4. That each party to bear its own costs of the Application.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF MARCH, 2024. HON. BEATRICE KIMEMIA - CHAIRPERSON SIGNED 7. 3.2024HON. BEATRICE SAWE - MEMBER SIGNED 7. 3. 2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 7. 3.2024HON. PHILIP GICHUKI - MEMBER SIGNED 7. 3.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 7. 3.2024HON. PAUL AOL - MEMBER SIGNED 7. 3.2024Tribunal Clerk JemimahNderitu Komu advocate for Claimant.Wambui Mwai advocate for Interested Party/ApplicantHON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 7. 3.2024