[2023] KECPT 743 (KLR)

Wekesa v Wanyama & 3 others (Tribunal Case 201 of 2022) [2023] KECPT 743 (KLR) (28 September 2023) (Judgment)

Neutral citation: [2023] KECPT 743 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 201 of 2022

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

September 28, 2023

Between

Robert Kitui Wekesa

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. According to the claim, 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 judgment 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 36, the name of the deceased Chelekesi M. Kituyi of ID number 3245512. We now ask ourselves, what this supposed to show the deceased's ownership of the ’17 acres of land’?The Evidence Act at Section 107 states;-“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.Similarly in the case of Samson S Maitai & Ano…. v …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 he claims 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. However, the Claimant did not produce evidence that connects the deceased’s shares with the 17-acre piece of land. From the look of the Area List alone, this Tribunal cannot deduce what the ‘0. 809 or the 250/,’ both of which are written against the names of the deceased mean. We find that the Claimant has not discharged the burden of proof and has not shown a correlation of the deceased’s shares and the piece of land claimed.

8. The Upshot of the foregoing is that the Claimant has failed to prove his case to the required standard of proof being on a balance of probabilities. Consequently, we find that the claim dated 28th March 2022 is not merited and the same is dismissed entirely with no orders as to costs

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 28. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 28. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 28. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 28. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 28. 9.2023HON. PAUL AOL MEMBER SIGNED 28. 9.2023Tribunal Clerk JemimahJudgment delivered in the absence of the parties.HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 28. 9.2023