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ELCDismissedLand Case No. 57 of 2009· [2016] KEELC 1171 (KLR)

Joseph Barasa Makhanu v Peter nyongesa & another [2016] KEELC 1171 (KLR)

Environment and Land Court
18 January 2016
1,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that co-operative land belongs to the shareholder whose name appears on payment receipts, and all his children inherit shares of it.

What this practically means

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Executive summary

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The plaintiff sued his brother, the first defendant, and his step-brother, the second defendant, seeking their eviction from a 1.6-acre parcel at Weonia farm, Weonia Farmers Co-operative Society Limited, where the plaintiff claimed to be a member holding 100 shares. He alleged the defendants invaded the land in 2004, demolished a toilet, and that the second defendant sold part of it. The second defendant contended the land belonged to their late father, Makhanu Chemiati, the true shareholder, and that the plaintiff had tricked the father into handing over receipts and colluded with Society officials to be listed as shareholder. The court framed four issues: whether the plaintiff bought 100 shares; ownership of the land; the defendants' entitlement; and costs. The court found that receipts as late as 2005 were issued in the father's name and that the plaintiff's share certificate was only issued on 24 October 2006, concluding it was the father, not the plaintiff, who bought the shares and owned the land. The court noted a dispute had been arbitrated before the local District Officer, with the land subdivided into four portions for the four sons, which the plaintiff conceded. The court held that on the death of the shareholder all his children are entitled to portions, and the plaintiff could not evict his brothers. The suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether the plaintiff was the shareholder and owner of the 1.6 acres at Weonia Farmers Co-operative Society

Holding

The court found that the father, Makhanu Chemiati, was the shareholder and hence the owner of the disputed land, not the plaintiff

Reasoning

Although the plaintiff produced a share certificate dated 24/10/2006 showing 100 shares and 1.6 acres, receipts as late as 17.10.2005 were issued in the name of his father. The court reasoned that if the land was the plaintiff's, there would have been no point making payments with receipts issued in the father's name. No evidence showed that 1.6 acres equated to shares of Kshs 1,020 each. The photocopy certificate dated 2006 was therefore insufficient to displace the father's ownership.

p. 2
02

Whether the defendants are entitled to a share of the land

Holding

All the children of the late Makhanu Chemiati, including the plaintiff, are entitled to portions of the land, and this had already been effected through sub-division into four portions by the District Officer

Reasoning

The land was allocated to Makhanu Chemiati by virtue of his membership of the Society. Having died, all his children are entitled to portions. The court noted the dispute had been arbitrated before the local District Officer, who subdivided the land into four portions for the four sons, a sub-division the plaintiff conceded during cross-examination. The court accepted this distribution as determining entitlement between the siblings.

p. 2
03

Whether the plaintiff could evict the defendants

Holding

The suit was misconceived as the plaintiff cannot evict his brothers from land they are entitled to

Reasoning

Having found that the disputed land belonged to the deceased father and that all his children are entitled to portions already sub-divided, the plaintiff's claim for eviction failed. The court held that the plaintiff, as one of the four sons sharing the land, could not claim exclusive possession and evict siblings entitled to their shares.

p. 3

Legal principles established

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  • Where receipts for share payments in a co-operative society are issued in the name of another person, that person, not the plaintiff, is the shareholder and owner of the allocated land
  • On the death of a co-operative society member, all his children are entitled to a portion of the land allocated to him by virtue of his membership

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendants
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (land dispute); judgment does not state the enabling provision

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Barasa Makhanu v Peter nyongesa & another [2016] KEELC 1171 (KLR)", Case Analysis (2016). Land Case No. 57 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1171/eng@2016-01-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.