Simon Wafula Wesusa v Nakwangwa Co-operative Society Limited [2017] KEELC 1345 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff proved entitlement to four acres of land from the defendant society
The court found the plaintiff proved he was entitled to four acres, having produced the shareholder's passbook and receipts totalling Kshs.72,000/=
The plaintiff testified as a member of the defendant co-operative and produced a Shareholder's Passbook No. 5292 together with five receipts dated between 1992 and 1994 recording payments entered in the passbook. The defendant did not defend the suit and offered no evidence to counter the claim. The court therefore found the entitlement proved on the evidence, though it declined to order actual allocation for want of evidence of land availability on the ground.
Whether specific allocation of the four acres could be ordered
The court declined to order specific allocation due to lack of evidence on the ground situation and availability of the land
The court noted the land was subdivided on the ground and there was no evidence that the co-operative had any land remaining for allocation. The plaintiff did not explain why the land was not being allocated to him or avail sufficient facts on the point. The defendant likewise did not come to court to explain the non-availability. In these circumstances, ordering specific allocation would be speculative, so the court withheld that relief despite finding entitlement proved.
What monetary remedy was available to the plaintiff
The plaintiff was entitled to a refund of Kshs.72,000/= with interest at 12% p.a. from 12/2/1992, but not a market-value refund, since he led no evidence of current land value
The plaintiff sought a refund at current market value of four acres, but led no evidence of the current value of an acre in the farm; that burden lay on him and was not discharged. The court observed the value of land had risen since 1992 and the plaintiff could not now obtain four acres at Kshs.72,000/=. It therefore granted a refund of the actual sums paid, with interest at 12% per annum from the date of the first commitment, plus costs and interest at court rates.
Legal principles established
#- A party seeking computation of a refund at current market value bears the burden of leading evidence of that value; failing which only a refund of the actual amount paid with interest can be granted
- A claimant who proves payment and entitlement to an allocation that cannot be delivered has an available remedy of a refund with interest
Court orders
#- 1.Judgment entered for the plaintiff against the defendant
- 2.The defendant to refund to the plaintiff the sum of Kshs.72,000/= with interest at the rate of 12% p.a. with effect from 12/2/1992
- 3.The plaintiff awarded costs of the suit with interest thereon at court rates
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (Environment and Land Court Act); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Wafula Wesusa v Nakwangwa Co-operative Society Limited [2017] KEELC 1345 (KLR)", Case Analysis (2017). Land Case No. 135 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1345/eng@2017-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.