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ELCDismissed· [2017] KEELC 648 (KLR)

Ronald Simiyu v Bikeke Farmers Co-operative Limited [2017] KEELC 648 (KLR)

Environment and Land Court (High Court, Kitale)
20 December 2017
1,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A land buyer lost his case against a co-operative society because he never became a member — his claim should have targeted the man who sold him the land.

What this practically means

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Executive summary

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The plaintiff sued the defendant co-operative society by plaint dated 16/6/2008, seeking a declaration that he owns 3 ½ acres out of the society's Bikeke Farm (LR No. 6626), an order that the society provide the land, plus costs and interest. He claimed to be a member owning Plot No. 411, alleging the society's officials unlawfully reduced his share from 3 ½ acres to the 2 acres in LR No. Waitaluk/Mabonde Block 4/411. The defendant denied the claim, asserting the plaintiff bought from a third party, Jackson Makokha, with no privity of contract, that his parcel measured 0.809 Ha, and that the dispute was res judicata following Kitale High Court Land Case No. 107 of 1996 between the plaintiff and Makokha. The plaintiff testified alone; the defendant called witnesses including its Chairman, who explained the society's land allocation was based on members' ascertained shareholdings and that the plaintiff was not a shareholder. The court framed four issues: membership, entitlement to 1.5 acres, res judicata, and costs. It held the plaintiff was never a member, as no share certificate was transferred to him and the transfer form was signed by only one official and never fully sanctioned. There being no privity of contract, his entitlement, if any, lay against the estate of Jackson Makokha. Res judicata failed because the society was not party to the earlier suit. The suit was dismissed entirely with each party bearing its own costs.

Key legal issues

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01

Membership of the defendant society

Holding

The plaintiff was never a member of the defendant society; no share certificate was transferred to him by Jackson Makokha

Reasoning

The plaintiff produced no share certificate in his name. The transfer form (P. Exhibit 2) bore a plot number instead of a share certificate number and was signed by only one official of the society without the Chairman's signature. Membership, and thus entitlement to land, depends on shareholding, which the plaintiff never acquired.

p. 2
02

Entitlement to 1.5 acres from the defendant

Holding

The plaintiff was not entitled to any land from the defendant; any claim lies against the estate of Jackson Makokha

Reasoning

The sale agreement of 1/7/1984 was executed between the plaintiff and Jackson Makokha without the defendant's officials; the transfer form was never fully sanctioned by the society and gave rise to no share certificate. The defendant had already allocated all its land to members and was not party to the transactions.

p. 3
03

Res judicata (Kitale Land Case No. 107 of 1996)

Holding

The suit is not res judicata because the defendant herein was not a party to the earlier suit

Reasoning

The decree in Kitale Land Case No. 107 of 1996 shows the earlier suit was between the plaintiff and Jackson Makokha only. The defendant herein was not joined as agent or otherwise, nor did the parties share a common interest in the suitland. The first limb of the res judicata test under Section 7 of the Civil Procedure Act therefore fails, and no other limb need be examined.

p. 3
04

Proof of the plaintiff's case

Holding

The plaintiff failed to prove his case on a balance of probabilities against the defendant

Reasoning

Having found the plaintiff was not a shareholder and had no privity of contract with the defendant, and that the defendant was not party to the 1984 transactions, the claim against the defendant could not stand. The plaintiff's remedy lies against the vendor who sold him the land.

p. 3

Legal principles established

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  • Direct entitlement to land from a co-operative society arises from a member's shareholding in the society; a purchaser from a member without transfer of a share certificate acquires no entitlement against the society
  • The first element of res judicata under Section 7 of the Civil Procedure Act is that the suit be between the same parties or parties claiming under them, litigating under the same title; where the parties differ, the plea fails without need to examine other limbs

Court orders

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  1. 1.The plaintiff's suit is dismissed entirely
  2. 2.Each party shall bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
Jurisdiction invoked
Original civil suit by plaint (land dispute); no constitutional or statutory jurisdictional provision invoked

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, "Ronald Simiyu v Bikeke Farmers Co-operative Limited [2017] KEELC 648 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/648/eng@2017-12-20

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