Case ID:182021

Konza Ranching & Farming Co-Operative

Society Limited v John Kimeu Muindi & 2 others [2021] eKLR

Case Metadata

Case Number:

Tribunal Case 496 of 2020

Parties:

Konza Ranching & Farming Co-Operative Society Limited v John Kimeu Muindi, Robert Nzuki Kametu & Purity Mutheu Mutua

Date Delivered:

29 Jul 2021

Case Class:

Civil

Court:

Cooperative Tribunal

Case Action:

Ruling

Judge(s):

B. Kimemia Chairperson

Citation:

Konza Ranching & Farming Co-Operative

Society Limited v John Kimeu Muindi & 2 others [2021] eKLR

Court Division:

Tribunal

Parties Profile:

Individual/Private Body/Association v Individual/Private Body/Association

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL

AT NAIROBI

TRIBUNAL CASE NO.496 OF 2020

KONZA RANCHING & FARMING CO-OPERATIVE

SOCIETY LIMITED ...........................................................................CLAIMANT

VERSUS

JOHN KIMEU MUINDI............................................................1

ST

RESPONDENT

ROBERT NZUKI KAMETU....................................................2

ND

RESPONDENT

PURITY MUTHEU MUTUA...................................................3

RD

RESPONDENT

RULING

1. The Application for determination is one dated

24.11.2020

it is brought under

Order Rule 1 and 2 Order 51 Rule 1 Civil Procedure Rules 2010, Section 3A, Civil Procedure Act

Cap 21

and all other enabling provisions and seeks for orders:

a.

That the Application be heard ex-parte in the first instance and the same be certified as urgent.

b. That pending the hearing and determination of this Application, the 1

st

, 2

nd

and 3

rd

Defendants /Respondents by themselves or through their agents, servants or assigns be restrained from trespassing upon, constructing , developing , selling, offering for sale, transferring, leasing, charging or in any way interfering with plot No. 213 Makueni or any party thereof and from harassing, threatening, intimidating or in any way causing disharmony to the Applicant or its members.

c. That pending the hearing and determination of this Application, the 1

st

Respondent be ordered to remove the 2

nd

and 3

rd

Respondents that he illegally installed in plot No. 213 or any party thereof in default of which the said persons be evicted forthwith by the Claimant.

d. That the OCS Machakos Police Station does enforce the orders of this Honourable court.

e. That the costs of this Application be provided for.

2. The Application is premised on the grounds on the face of the Application to wit the Claimant/Applicant is a Co-operative society duly registered with some aim of providing land and housing to its members.

The Claimant is the legal owner of plot No. 213 Makueni to which it resolved to sub-divide and allocate it to its members using ballot papers.

That the 1

st

Respondent working in cohorts with 2

nd

and 3

rd

Respondent who were not members of the Claimant fraudulently picked 2 ballot papers No. 213 and 214.

Efforts by the Claimant/ Applicant to obtain assistance in removing the 2

nd

and 3

rd

Respondent from the said plots have proceed futile.

3. The Application is supported by the Affidavit of

D.M Mutagili

who is the Chairman of the Claimant.

Plot No. 213 was held in trust for its members following a resolution of Claimant members passed at a Special General Meeting on

18.12.1999

. each member of the Claimant was allotted 2 acres.

That upon completion of the sub-division Claimant prepared ballot papers for its members for easy distribution of plots.

The 1

st

Respondent who is member of Claimant was to pick only one ballot however in cohorts with 2

nd

and 3

rd

Respondents he picked 2 ballots papers No. 213 and 214.

1

st

Respondent unlawfully installed plot No. 213 to the 2

nd

and 3

rd

Respondents.

The 1

st

Respondent on being questioned by Claimant on how he got 2 ballot papers he admitted he had fraudulently taken 2 ballot papers and agreed to surrender plot No. 213.

The 1

st

Respondent swore an Affidavit to that effect marked

‘DMM3’

When time came for 1

st

Respondent to be allocated 10.8acres plot he cunningly evaded efforts by Claimant to hive off 2 acres originally agreed in his sworn Affidavit.

Claimant/ Applicant has unsuccessfully tried to evict the 2

nd

and 3

rd

Respondent however they have not managed and are apprehensive to lose their property, exposed to imminent danger and more so stand to suffer irreparable loss.

4. The 1

st

Respondent responded to the Application by filing Grounds of Opposition dated

1.3.2021

on

2.3.2021

.

In the said Grounds of Opposition he stated the Application was incompetent and abuse of the Tribunal process.

The orders sought in the Application are similar to those in the Statement of Claim as such granting the orders would amount to allowing the Statement of Claim without parties giving evidence.

The Claimant filed a response to the Grounds of Opposition sworn on

22.3.2021

and filed on even date. He reiterated contents of his Affidavit in support of the Application and added that the Affidavit of the 1

st

Respondent annexed in his Affidavit sworn on

24.11.2020

marked as

DMM3

admitted to fraud and the court should not be taken into a rigorous trial process on issues which have already been admitted by a party.

5. The 1

st

Respondent filed a further Affidavit in response and stated parcel no. 213 Makueni was legally allocated to him.

That he did not admit in writing the particulars of fraud complained if by the Claimant and would seek to cross examine the Advocate who allegedly drafted the Affidavit.

That the 2

nd

and 3

rd

Respondent are legally on the suit property since year 2000 and will suffer irreparably if orders sought are granted at an interlocutory stage.

That the 1

st

Respondent never relinquished his rights one land parcel NO. 213 Makueni.

Parties were directed to file written submissions to dispense off the application and as such the Claimant /Applicant filed their written submissions dated

22.3.2020

on

23.3.2021

and 1

st

respondent filed their written submissions dated

21.5.2021

on

26.5.2021.

The 2

nd

and 3

rd

Respondent did not enter Appearance in the matter to the said Application.

6. Analysis

Having considered the pleading, Affidavit and submissions of all the parties we note the issues to be addressed are:

Issue one

:

TRESPASS

: is there trespass by 2

nd

and 3

rd

Respondent

Issue two: Whether Interlocutory Orders should be issued against the Respondent.

Issue One:

Section 3 (1) Trespass Act Cap 294

provides that:

“Any person who without reasonable excuse enters is or remains upon or erects any structure on or cultivates or tills or grazes stock or permits stock to be or, private and without the consent of the occupier thereof shall be guilty of an offence..”

The 2

nd

and 3

rd

Respondent who are the ‘trespassers’ in this case were served with the application as per the affidavit of service of

Alphonse Kyalo Kasimu

filed on

1.3.2021

but failed to enter appearance or file a response to the Application.

The 2

nd

and 3

rd

Respondent are in occupation of the land in question and Applicant seeks for orders the 1

st

, 2

nd

and 3

rd

Respondent be restrained from trespassing, constructing, developing, selling, offering for sale, transferring, leasing, charging or in any way interfering with plot No. 213 Makueni or any party thereof and from harassing, threatening, intimidating or in any way causing disharmony to the Applicant or its members.

And secondly the Applicant wishes for the 1

st

Respondent to be ordered to remove the 2

nd

and 3

rd

Respondent since he is the one who illegally instructed them in plot No. 213.

7. We have considered the Applicant’s case as pleaded and evidence tendered against the 1

st

, 2

nd

and 3

rd

Respondent in form of annextures to the Affidavits by the Claimant and would wish to state as follows:

Trespass has been defined as any unjustifiable intrusion by one person upon the land in the possession of another see

Clerk and Lindsell on Torts , 18 edition page 923.

The onus is on the Applicant to prove he is the owner of the property in question and that the Respondent have invaded and occupied the same without any justifiable cause.

8. From the Affidavits what is clear the land where the 2

nd

and 3

rd

Respondent are belonged to the Applicant.

The 2

nd

and 3

rd

Respondent got into the land by virtue of 1

st

Respondent.

For some reason they did not find it fit to respond to the Application and the 1

st

Respondent as it were from his Affidavits and responses is the one pleading their case.

It is yet to be established whether the Respondent trespassed in the land if at all.

In our view this can only be done during trial.

9. Issue No. 2

Whether Interlocutory Orders can be issued.

For any Application to be granted orders and injunctions the law is well articulated in the case of

Giella - vs- Cassman Brown and Company Limited [1973] EA 358

where the court held the Applicant must establish.

1. Prima facie case

2. Harm- suffer irreparable harm not adequately compensated for in damages.

3. Balance of convenience ...who is likely to suffer prejudice in orders are given or not.

In the Application before us the question to ask is whether a

prima facie case

been established by the Applicant?

A

prima facie case

was defined by the Court of appeal in the case of

Mrao Limited -vs- first American Bank of Kenya Limited and 2 others [2003] KLR 1215

as:

“ A Prima facie case in a civil Application includes but is not confined to a “genuine” and “arguable case”. It is a case which, on the material presented to the court, a tribunal property directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”

Indeed the Applicant has established a case against the 1

st

2

nd

and 3

rd

Respondent.

2

nd

question

- has the Applicant illustrated they shall suffer irreparable harm that would not adequately be compensated for in damages.?

The harm to this end would mean the Applicant has lost land which in our view can be compensated.

3

rd

question

– on the issue of balance of convenience, the same tilts in favour of the Claimant/Applicant being the aggrieved party and having evidenced the same. The 1

st

Respondent has not shown that they will suffer harm/prejudice if the Applicants are granted the injunctive reliefs.

10. Upshot

In view of the foregoing we find the Notice of Motion dated

24.11.2020

has merit and grant the following orders as per

Rule 3 and 4 Co-operative Tribunal (Practice and Procedure Rules) 2009.

1. Pending hearing and determination of the suit herein the 1

st

, 2

nd

and 3

rd

Respondents are restrained from developing selling, offering for sale, transferring, leasing , charging plot No. 213 Makueni.

Ruling signed, dated and delivered

virtually

at

Nairobi

this

29

th

day of

July,

2021.

Hon. B. Kimemia Chairperson Signed 29.7.2021

Hon. J. Mwatsama Deputy Chairperson Signed 29.7.2021

Mr. Gitonga Kamiti Member Signed 29.7.2021

Tribunal Clerk Charles Maina

Sagini holding brief for Orina for Claimant/Respondent

Nyaata Advocate for Respondent

Mention for Pre-trial on 17.9.2021

Parties to file witness statement and documents within 30 days herein.

Hon. B. Kimemia Chairperson Signed 29.7.2021