[2017] KEELC 1345 (KLR)
The court found that the plaintiff had proved full payment for four acres of land as a member of the defendant co-operative society, entitling him to allocation. However, due to lack of evidence on the availability of land and absence of proof of current market value, the court declined to order specific allocation...
Source-derived case information.
- Citation
- [2017] KEELC 1345 (KLR)
- Parties
- Plaintiff: Simon Wafula Wesusa; Defendant: Nakwangwa Co-operative Society Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 135 of 2015
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff; refund of Kshs.72,000 with interest at 12% per annum from 12/2/1992; costs awarded to plaintiff.
- Judges
- FM Njoroge
- Legal Topics
- Cooperative Society Land Allocation, Specific Performance, Refund of Purchase Price, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Wafula Wesusa
Plaintiff
Nakwangwa Co-operative Society Limited
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to allocation of four acres of land from the defendant co-operative society.
- 2 Whether the plaintiff is entitled to a refund of the purchase price at the current market value if land allocation is not possible.
- 3 Whether an injunction should issue restraining the defendant from surveying or dealing with the land until the plaintiff is allocated his share.
Ratio Decidendi
The court found that the plaintiff had proved full payment for four acres of land as a member of the defendant co-operative society, entitling him to allocation. However, due to lack of evidence on the availability of land and absence of proof of current market value, the court declined to order specific allocation or refund at current value. Instead, the court ordered a refund of the original purchase price (Kshs.72,000) with interest at 12% per annum from the date of payment, holding that the defendant's failure to allocate land or appear in court left the plaintiff with no other remedy. The court also awarded costs to the plaintiff.
Court Disposition
Judgment for the plaintiff; refund of Kshs.72,000 with interest at 12% per annum from 12/2/1992; costs awarded to plaintiff.
Orders
- The defendant shall refund to the plaintiff the sum of Kshs.72,000 with interest at 12% per annum from 12/2/1992.
- The plaintiff is awarded costs of the suit with interest at court rates.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 135 OF 2015
SIMON WAFULA WESUSA..................................................PLAINTIFF
VERSUS
NAKWANGWA CO-OPERATIVE SOCIETY LIMITED.....DEFENDANT
JUDGEMENT
1. The plaintiff commenced this suit by way of a plaint dated 21/10/2015 which was later amended on 13/3/2017 and filed in court on 15/3/2017. The plaintiff prayed for an injunction against the defendant or its agents to restrain them from carrying or survey on the farm until the plaintiff is given his four (4) acres. He also prayed for a declaration that he is entitled to four (4) acres of land out of the land comprised in Nakwangwa Farm, and a refund of the purchase price at the current market value of four (4) acres of land comprised in Nakwangwa Farm. The suit was not defended.
2. The plaintiff testified on 2/3/2017 and on 23/8/2017. He stated that he was a member of the defendant Co-operative Society and that he had been issued with a Shareholder’s Passbook No. 5292 which he produced as P. Exhibit 1. He averred that each shareholder was to pay Kshs.72,000/= whereupon he would be allocated land amounting to four (4) acres. He produced Receipts No. 340 (P. Exhibit 2) dated 12/9/1992 for Kshs.10,000/=. Receipt No.78 (P. Exhibit 3) dated 5/2/1994 for Kshs.10,000/=. Receipt No. 98 (P. Exhibit 4) dated 19/2/1994 for Kshs.4,000/=. Receipt No. 204 (P. Exhibit 5) dated 5/3/1994 for Kshs.18,000/=. Receipt No. 246 (P. Exhibit 6) dated 20/6/1994 for Kshs.30,000/=. All these payments were entered into the passbook produced as P. Exhibit 1.
3. Despite payment in full, the plaintiff stated, he had followed up on the allocation of land to him with no success. The plaintiff seeks orders as set out at the beginning of this judgement. Upon examination by the court, the plaintiff averred that the land is subdivided on the ground. There is no evidence brought to court that the co-operative society has any land remaining for issuance to the plaintiff. However I find that the plaintiff has proved that he was entitled to four (4) acres of land out of the Nakwangwa Multi-purpose Co-operative Society Ltd land.
4. Notwithstanding that finding this court will decline to order that he be specifically issued with the four (4) acres. This is due to the lack of any evidence regarding the situation on the ground as to the availability of the four (4) acres that he claims. The plaintiff has not attempted to explain the reason why the land is not being allocated to him. He has not availed to the court sufficient facts as to why he has not been allocated land.
5. The plaintiff has however sought a refund of the purchase price at the current market value of four (4) acres of land comprised in Nakwangwa Farm. No evidence was led as to the current value of an acre of land in the farm to enable the court to compute the value sought. That burden lay upon the plaintiff and he has not discharged it. The only remedy that is now available to the plaintiff according to this court is an order of a refund with interest.
6. It is clear from the prayers in the plaint that the value of land has risen since the 12/2/1992 when the plaintiff committed himself to the defendant in the hope of obtaining a parcel of land. It is doubtful that the plaintiff may get four (4) acres at the price of Kshs.72,000/= now. It is not his fault. The defendant has not come to court to explain why the land is not available for allocation to the plaintiff.
7. I therefore enter judgement for the plaintiff against the defendant and order that the defendant do refund to the plaintiff the sum of Kshs.72,000/= with interest at the rate of 12%p.a. with effect from 12/2/1992. The plaintiff is also awarded costs of this suit with interest thereon at court rates.
Dated, signed and delivered at Kitale on this 19th day ofSeptember, 2017.
MWANGI NJOROGE
JUDGE
Judgement read in open court in the presence of:-
Mr. Bisonga holding brief for Mr. Mbito for the plaintiff.
N/A for the defendant
Court Assistant – Isabellah.
MWANGI NJOROGE
JUDGE
19/09/2017.