Muinde v Makau & 2 others [2025] KECPT 375 (KLR)

Muinde v Makau & 2 others (Tribunal Case 554/E732 of 2023) [2025] KECPT 375 (KLR) (10 July 2025) (Judgment)

Neutral citation: [2025] KECPT 375 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 554/E732 of 2023

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

July 10, 2025

Between

Joseph Mutua Muinde

Claimant

and

Richard Makau

1st Respondent

Leonard Munyao Kamba

2nd Respondent

Katelembo Athian Muputu Faming And Ranching Co-Operative Society

3rd Respondent

Judgment

1. The Claimant’s claim herein was brought to the Tribunal vide Statement of Claim dated 25th of September, 2023. Therein, the Claimant prays for judgement against the Respondent for: -a.A declaration that all that parcel of land registered as plot number 3076 held by the 3rd Respondent belongs to the Claimant,b.A permanent injunction do issue restraining the Respondent either by themselves, their authorized agent, servant and/ or employee from trespassing, entering, remaining, transferring, subdividing, selling and/ or in any way dealing with the Claimant’s parcel of land registered as plot number 3076 held by the 3rd Respondent,c.An order of eviction do issue against the 2nd Respondent and the same be executed by Officer Commanding Station, Machakos Police Station.d.Costs and interests of this suit.

2. It is the Claimant’s claim that he was the sole registered owner of the land parcel known as plot number 3076 held at the 3rd Respondent. That the said parcel of land was transferred to the Claimant by J. Kima Mutua who was member number 624 of the 3rd Respondent and was allocated the said plot by virtue of his membership. That the 1st Respondent purported to sell the land to Ndeku Kiiti, now deceased, who is a sister to the 2nd Respondent. That the 1st Respondent is a member of the 3rd Respondent being member number 172 and was allocated plot number 944 by virtue of his membership. That the said plot number 944 is now registered as Athi River/athi River Nlock 1/1323 in the name of Rebecca Nzula Muinde. That the Claimant and the 1st Respondent appeared before a taskforce established to hear disputed between members of the 3rd Respondent and on the 22/8/2019, the said taskforce made the ruling that: -i.Nduku Kiiti or the administrator of her estate vacate plot number 3076 with immediate effect;ii.Kima group take possession of their plot 3076 within a month from the date of delivery of the taskforce decision.iii.3rd Respondent to nullify any transfers done between Richard Makau and Nduku Kiiti in regard to plot number 3076. iv.Richard Makau to use legal measures against Rebecca Nzula Muinde to take possession of his rightful allocation of plot no. 944;v.Land registrar put restrictions on Athiriver/athiriver Block 1/1325. vi.Since Richard Makau had not sold plot number 3076 to Nuku Kiiti (now deceased) who had planted trees on the plot in the interest of respect for the deceased, Richard Makau can negotiate with Kima group to take possession of plot no. 944 after he fully secures the plot instead of plot no. 3076; otherwise decision (i), (ii) and (iii) above stand.

3. The Claimant states further that the Respondents have been colluding to defraud the Claimant his land and force him to take up plot number 944 now registered as Athi River/athi River Block 1/1323 which is registered in the name of Rebecca Nzula Muinde. That the 2nd Respondent has unlawfully been trespassing onto the Claimant’s parcel of land by sending his workers to cut trees, till the land, graze livestock therein. That the 2nd Respondent has also denied the Claimant access to the suit land by erecting a fence thereon and hiring goons to deny him access. That the said acts have deprived the Claimant of his lawful possession, use and occupation of the said parcel of land. That demand and notice of intention to sue was made in vain.The Claimant also filed Witness Statements and list of documents.

4. On 15th May, 2024, the Claimant filed a Request for Interlocutory Judgement dated 18th January, 2025, on account of the default of the 1st and 3rd Respondent to enter appearance and file responses to the Statements of Claim. Their efforts to set aside the Interlocutory Judgement failed. The 2nd Respondent filed on 18th October, 2023, wherein he denies the Claim in its entirety and avers that the Claimant has never been the Registered and beneficial owner of the suit property and the interest in the same was at all times vested in the 1st Respondent. That the 1st Respondent was the allottee of plot number 3076 and as such lawfully transferred it to the deceased Nduku Kiiti. That if there exists any element of unlawful transfer by the 1st Respondent, the deceased Nduku Kiiti was an innocent purchaser for value and had no notice of defect on the title and in any event acquired a clean title from the Respondent. That the 2nd Respondent was never informed or included in the dispute lodged by the Claimant before the 3rd Respondent and the subsequent dispute resolution by the taskforce since, hence the ruling of 22nd August, 2019 is shambolic, not done in accordance to due procedure and consequently void ab initio. That the 2nd Respondent has no interest whatsoever in property ATHI RIVER/ATHI RIVER BLOCK 1/1323. That the 2nd Respondent is the beneficial owner of the suit property having lawfully acquired the same and is not in any way trespassing thereon.

5. That the Claimant, without any color of right has sought to enter upon the property purporting to take possession thereof and disrupting the quiet enjoyment of the property by the 2nd Respondent. That the Claimant’s claim is false, baseless, defective and geared towards unjust enrichment by claiming the 2nd Respondent’s property rightly acquired by the 2nd Respondent. That the 2nd Respondent denies receipt of any notice of intention to sue and/or demand and therefore the Claimant is not entitled to costs at all. The 2nd Respondent prays that the Claimant’s claim be dismissed with costs to the 2nd Respondent.The matter proceeded to the hearing of the cases of the Claimant and the 2nd Respondent.

Claimant’s Case 6. The Claimant at the hearing adduced sworn evidence to the effect that the land known as plot number 3076 is his and requests the Tribunal to remove or evict Richard Makau the 1st Respondent and Leonard Munyao the 2nd Respondent from the land. The Claimant adopted his Witness Statement dated 8/1/2024 as his evidence in chief and produced the list of documents dated 29/9/2023 in evidence and marked the documents therein as the Claimant’s exhibit 1-5 in the order which they appear.

7. On cross-examination, the Claimant stated that he was the Chairman of the 3rd Respondent from the year 2005 to 2016. That he ceased being a member when he was not elected. That he joined the 3rd Respondent as a member in the year 1972. That he knows the 1st Respondent. That the 1st Respondent was a member of the 3rd Respondent who had two plots. That the Claimant was allocated land by 3rd Respondent. That Kima Mutua is the name of group. That he has no document to prove that the land was transferred to him. That the land in mention is situated in Katelembo while he lives in ougdani. That he has not built on the land. That the land belongs to the group.

8. On re-examination, the Claimant stated Claimant’s Exhibit 1 is his membership card, that the name J. Kima Mutua was coined by the group which was made of friends who came together. That the group transferred the land to him to make it easier to sell and transfer. That the transfer form was signed by the Chairman, treasurer and Secretary. That he paid form the transfer as per the Claimant’s exhibit number 3. That no one lives on the land. That the group plans are to sell the land and share the proceeds. That Richard Makau, the 1st Respondent, as a member of the 3rd Respondent, owned plot number 944 which he sold. That when the J. Kima group transferred to him the plot in the year 2020, he was not an official. That he left leadership in the year 2016. The Claimant adopted the Witness Statements of Dorothy Mueni and George Wambua dated 8/1/2024 as part of his evidence in chief.

Respondent’s Case. 9. The Respondent’s witness, Respondent Witness 1 was Leonard Munyao Kamba also the 2nd Respondent herein, adduced evidence at the hearing. Wherein he adopted his Witness Statement dated 25/10/2023, filed on even date, as his evidence in chief and produced his list of documents dated 30/10/2023 in evidence and marked the documents therein as the 2nd Respondent’s exhibit 1-4.

10. In his evidence, Respondent Witness 1 stated that he was not listed in the summon letter to attend the taskforce. That the 1st Respondent, Richard Makau was summoned. That Jennifer Kiiti was his sister who bought the land from the 1st Respondent Richard Makau over 25 years ago. That she fenced the land, built a temporary house, a permanent toilet and planted over two hundred trees. That there were no complaints until 3-4 years ago after she passed away.

11. On cross-examination, the 2nd Respondent admitted that he did not have a document from the 3rd Respondent to show that his sister bought the land. That the sister’s son is 25 years old. That the 2nd Respondent is not the Administrator of the estate of his said sister but following up as a family. They fenced the land but the Claimant started claiming after they fenced it. That his sister developed that land but he did not have photographic evidence to prove the existence of the house and the toilet. That in the 2nd Respondent Exhibit 1, the stated land was transferred by the Respondent to Ndunge Benson Kiiti and not Nduku Kiiti. That Ndunge Benson Kiiti and Nduku Kiiti are not one and the same person. That Ndunge did not by the land from the 1st Respondent. That there is no transfer from Richard Makau to Nuku Kiiti. That there is no connection between Nduku Kiiti and the 3rd Respondent. That Ndunge Benson Kiiti is in America and has not been included in the case. That however, the transfer form marked as Respondent’s exhibit 1 is not signed and is not binding. Further, Respondent Witness 1 stated in respect to the taskforce report marked as the Respondent exhibit 2, that Nduku Kiiti was told to vacae plot no. 3076 and Kima group to take possession. That the 1st Respondent, Richard Makau was to look for his plot number 944. That the taskforce recommended that the 1st Respondent could otherwise reach out to Kima group and negotiate an agreement. That he called the 1st Respondent to come and act as a witness but he did not. That the Respondent’s exhibit 3, the receipt is dated 5/11/2019 while the task force receipt is dated 22/8/2019. That he is the person in occupation of the land.

12. On re-examination, Respondent Witness 1 stated that the summons letter is dated 5/11/2019 and the receipt under Respondent’s exhibit 3 is also dated 5/11/2019. That he was allowed by the 3rd Respondent to pay for the transfer after they saw the 1st Respondent’s documents. That comparing Respondent Exhibit 3, he finds that the signatures are the same. That he signed in his capacity as Leonard Makau and not Administrator of the estate of Nduku Kiiti. That as per the photos produced by the Claimant as exhibit 5, only trees and fence can be seen. Trees are 20-23 years old. On being asked why the property was not transferred to Nduku Kiiti, Respondent Witness 2 stated that she was deceased.Upon the close of their cases, the Claimant and the 2nd Respondent were directed to file Written Submissions. The Claimant’s Written Submissions are dated 6th June, 2024.

Analysis and Determination. 13. We have considered the pleadings and documents filed by the Claimant and 2nd Respondent and have only one issue for determination; Whether or not, the Claimant has proved his case against the Respondent on a balance of probability.

14. From the documentary evidence on record and the oral evidence of the Claimant and 2nd Respondent, it is not in dispute that the Claimant and the 1st Respondent were members of the 3rd Respondent. What is in dispute, is whether or not the plot known as number 3076 belongs to the Claimant via the Group J. Kima or to the 2nd Respondent via Nduku Kiiti from the 1st Respondent Richard Makau. In a bid to determine the above, we must establish on a balance of probabilities whether plot number 3076 was initially allocated to J. Kima group or to Richard Makau.

15. It is no doubt that the 3rd Respondent is a very old society and owing to the fact that the 3rd Respondent failed to participate in the proceedings before this Tribunal, we have to rely on the evidence of parties who presented themselves in the matter. Both the Claimant and the 2nd Respondent produced before this Tribunal a Task force report and Ruling dated 22nd August, 2019, wherein the dispute between the Claimant’s J. Kima group and the 1st Respondent over plot number 3076 was determined.

16. In the ruling, signed by on Geoffrey Taragon the DCC Machakos as the Chairman, one David Nzomo, Cooperative officer as a member and one Harrison K. Nyamu, County Co-operative Commissioner also as a member that plot number 3076 belonged to J. Kima group and ought to be returned to them. That the 1st Respondent who was member number 172 had been allocated plot number 944 to which he was entitled.

17. In his evidence, the Claimant illustrated how the plot moved from the name Kima J. Mutua who held for the group, to his name as a result of trespass by the 2nd Respondent. He produced the transfer form and receipt, both dated 21/01/2020, after ruling of the taskforce.

18. On the other hand, the 2nd Respondent disputed the findings of the task force and maintained throughout the proceedings that the plot number 3076 belonged to Richard Makau.

19. There is however no evidence of ownership of the land by the 1st Respondent, either by way of allotment or transfer. Neither is there evidence adduced before this Tribunal to show that the 2nd Respondent’s alleged sister Ndunge Kiiti purchased the plot from the 1st Respondent. Though the 2nd Respondent produced a letter of summon dated 22/10/2019 addressed to the 1st Respondent from the 3rd Respondent on account of his Kamba family complaint, there is no evidence to the proceedings or findings of the 3rd Respondent committee on his complaint. Though the 2nd Respondent produced a transfer form dated 5/11/2019 which is neither signed nor dated, purporting to transfer plot number 3076 from the 1st Respondent to one Ndunge Benson Kiiti, a person he admitted at the hearing as a distinct and different person from his deceased sister, Nduku Kiiti.

20. Furthermore, despite stating that Nduku Kiiti is deceased, the 2nd Respondent did not produce any evidence of her death or grant of administration to her estate.

21. It is for the foregoing reason that we find that the Claimant’s Claim has not been controverted by the 2nd Respondent and that the Claimant has proved his case against the 1st and 2nd Respondents on the required standard of a balance of probability.Consequently, we allow the Claimant’s claim and enter judgement as prayed in the Statement of Claim.

JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025. Hon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025Hon. Beatrice Sawe Member Signed 10. 7.2025Hon. Fridah Lotuiya Member Signed 10. 7.2025Hon. Philip Gichuki Member Signed 10. 7.2025Hon. Michael Chesikaw Member Signed 10. 7.2025Hon. P. Aol Member Signed 10. 7.2025Tribunal Clerk KokiMuema advocate for the ClaimantMule advocate holding brief for Mutana advocate for the 1st Respondent.Mule advocate – We pray for 30 days stay of execution and leave to appeal.Tribunal order30 days stay of execution granted.Respondent granted leave to appeal.Hon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025