[2023] KECPT 760 (KLR)

Wekesa (Suing in his capacity as the personal representative & administrator of the Estate of Chekesi Makali Kitui (Deceased) v Wanyama & 3 others (Tribunal Case E260 (201) of 2022) [2023] KECPT 760 (KLR) (21 September 2023) (Judgment)

Neutral citation: [2023] KECPT 760 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case E260 (201) of 2022

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

September 21, 2023

Between

Robert Kitui Wekesa (Suing in his capacity as the personal representative & administrator of the Estate of Chekesi Makali Kitui (Deceased)

Claimant

and

Julius Wanyama

1st Respondent

James Omanya Anzaya

2nd Respondent

Peter W Barasa

3rd Respondent

Lunyu Cooperative Society Ltd

4th Respondent

Judgment

1. The matter for determination is a Statement of Claim dated 28th day of March 2022. In the Statement of Claim, the Claimant is instituting the claim in his capacity as the legal representative and court appointed administrator of the estate of the late Chelekesi Kituyi Makali. The late Makali was a fully paid up member of the 4th Respondent and was allocated Share Certificate Number 464 for 52 shares which was equivalent to a parcel of land measuring 17 acres. It is the Claimant's claim that the Respondents have unlawfully withheld the said parcel of land with the aim of distributing the same to strangers for personal claim. The 1st, 2nd and 3rd Respondents are the Chairman, Secretary and Treasurer respectively of the 4th Respondent. The Claimants claim is for the title of the Seventeen Acres of land.

2. The Respondents failed to enter appearance or file Statement of Defence despite service of summons.

3. On 20th May 2022 the Claimants filed a request for judgement dated 16th May 2022 on the basis that the Respondents did not enter appearance or file a Defence within the requisite time.

4. On 17th June 2021, judgment was entered in favour of the Claimants against the Respondents. Formal Proof was set for 16th August 2022.

5. During the Formal Proof hearing, the Claimant presented his case as against the Respondents, and the Claimant testified. He adopted his witness statement produced the documents that included letters of administration, and share certificates that belonged to the deceased. His prayer to the Tribunal is for the title deed of the parcel of land.

Analysis 6. The Claimant claims that the deceased was a member of the 4th Respondent, and indeed produced a share certificate in the name of the deceased where it is indicated that the deceased owned about five and half shares. We are inclined to belief that indeed the deceased was a shareholder of the 4th Respondent.

7. On the question of ownership of 17 acres of land, it is noted that the Claimant submitted an Area List deemed Area List LR 6194 which has in its list at number 38, the name of the deceased Chelekesi Wafula Mutoro of ID number 0129871. We now ask ourselves, is the estate of the deceased entitled to the ’17 acres of land claimed?The case of Samson S. Maitai & Ano….Vs…African Safari Club Ltd & Ano. (2010) eKLR, the Court held that:-“…..I have not seen judicial definition of the phrase ‘formal proof’. ‘Formal’ in its ordinary dictionary meaning refers to being ‘methodical’ according to rules of evidence. On the other hand, according to Halsburys Laws of England, Vol. 17 Paragraph 260, proof is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption”.Therefore, even in cases where the other party does not enter appearance and does not file a Statement of Defence, the claimant still has a burden of adducing evidence to prove his case. The burden of proof does not leave the claimant until that burden is discharged. The purpose of Formal Proof in this case, was for the Claimant to proof his case, to wit, the deceased’s claim of the 17 acres parcel of land that is unlawfully held by the Respondents. The Claimant testified that his family has been living in the piece of land for a very long time from the year 1985. From the look of the Area List we are convinced that the deceased was indeed a member of the 4th Respondent and he was entitled to parcels of land corresponding to his shares. In his Witness Statement, the Claimant states that the sole purpose of the 4th Respondent was to purchase land for its shareholders, and indeed the deceased’s family has been living undisturbed in the land for more than 30 years. The Respondents did not appear to controvert this evidence. This Tribunal is inclined to find that the Claimant has proved his case to the required standard of proof being on a balance of probabilities

8. The Upshot of the above is that s we find for the Claimant with the following orders:a.The 4th Respondent to issue the title for the 17 acres of land to the Claimant within 30 days of the day of this judgment.b.Respondents to bear the costs of this claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. Hon. Beatrice Kimemia Chairperson Signed 21. 9.2023Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023Hon. Beatrice Sawe Member Signed 21. 9.2023Hon. Fridah Lotuiya Member Signed 21. 9.2023Hon. Philip Gichuki Member Signed 21. 9.2023Hon. Michael Chesikaw Member Signed 21. 9.2023Hon. Paul Aol Member Signed 21. 9.2023Tribunal Clerk JemimahJudgment delivered in absence of parties.Hon. J. Mwatsama Deputy Chairperson Signed 21. 9.2023