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ELCDismissedMachakos ELCA (Memorandum of Appeal dated 17th May 2022) arising from Machakos CMCC No. 1187 of 2010· [2025] KEELC 234 (KLR)

Mbithi v Musyoka & another (Environment and Land Appeal 17 of 2022) [2025] KEELC 234 (KLR)

Environment and Land Court
22 January 2025
4,233 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you cannot sell or claim a dead person's co-operative share without a grant of administration—such dealings are void.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. Abdul Lorot, Senior Principal Magistrate, delivered on 26th April 2019 in Machakos CMCC No. 1187 of 2010, which allowed the respondents' claim and ordered that share number 574 held at Konza Ranching and Farming Co-operative Society Limited be restored to the name of the deceased Thyaka Musyoka, with subsequent dealings declared null and void. The appellant, a grandson of the deceased, appealed on eight grounds, principally that the trial court lacked jurisdiction (the dispute being within the Co-operative Tribunal under section 76 of the Co-operative Societies Act) and that the respondents had not proved their claim. The appeal was disposed of by written submissions. The court framed two issues: jurisdiction and proof of the claim. On jurisdiction, it held that although persons claiming through members are within section 76, the parties were not members of Konza and there was no dispute between them and the society; the dispute was over whether the appellant lawfully acquired property of the deceased, so the trial court had jurisdiction. On the merits, the court found no evidence of nomination by the deceased under section 39 of the Co-operative Societies Act, and held that the share formed part of the deceased's estate. Since the appellant had no grant of letters of administration, and section 82(b)(ii) of the Law of Succession Act bars sale of immovable property before confirmation of grant, his acquisition and sale amounted to intermeddling under section 45. The trial court's findings were affirmed, the appeal was dismissed with costs to the respondents, and the judgment dated, signed and delivered virtually at Machakos on 22nd January 2025.

Key legal issues

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01

Whether the trial court had jurisdiction given section 76 of the Co-operative Societies Act

Holding

The trial court had jurisdiction because the dispute was not one concerning the business of a co-operative society between members or between members and the society.

Reasoning

Section 76 of the Co-operative Societies Act confines certain disputes to the Co-operative Tribunal. The court found the dispute was about whether the appellant lawfully acquired property originally owned by the late Thyaka Musyoka. The parties were not members of Konza and there was no dispute between any of them and the society, so the dispute fell outside section 76.

p. 6
02

Whether the suit share formed part of the estate of Thyaka Musyoka and whether the appellant acquired it lawfully

Holding

The suit property formed part of the deceased's estate and the appellant acquired it unlawfully; his dealings were null and void.

Reasoning

The appellant conceded the share belonged to the deceased as at 2010 but claimed it was gifted through Mulekyo. There was no evidence of nomination by the deceased as required under section 39 of the Co-operative Societies Act. Absent a grant, no sale of immovable property could occur before confirmation of grant (section 82(b)(ii) of the Law of Succession Act), and dealings by others amount to intermeddling under section 45.

p. 8
03

Whether the respondents proved their claim on the burden of proof

Holding

Yes; the respondents proved the suit property belongs to the estate of the deceased and the appellant's dealings were contrary to sections 82 and 45 of the Law of Succession Act.

Reasoning

Under section 107 of the Evidence Act the burden lay on the plaintiffs. The appellant conceded the share belonged to the deceased and failed to demonstrate acquisition through nomination or grant. His actions therefore constituted intermeddling, and the trial court was justified in restoring the share to the deceased's name and declaring subsequent dealings nullities.

p. 8

Legal principles established

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  • Jurisdiction is conferred by the Constitution or statute and a court cannot arrogate to itself jurisdiction it does not have.
  • Disputes between persons claiming through members of a co-operative society over estate property do not fall within section 76 of the Co-operative Societies Act where the parties are not members of the society and no dispute exists with the society.
  • A valid sale of a deceased person's immovable property can only be made by personal representatives, and not before confirmation of the grant.
  • Dealing with a deceased person's property without a grant of letters of administration amounts to intermeddling under section 45 of the Law of Succession Act.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The appellant to pay costs of the appeal to the respondents
On appeal from
Senior Principal Magistrate's Court, Machakos
CMCC No. 1187 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court (trial court jurisdiction upheld notwithstanding section 76 of the Co-operative Societies Act; appeal disposed under sections 78 and 27 of the Civil Procedure Act)

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, "Mbithi v Musyoka & another (Environment and Land Appeal 17 of 2022) [2025] KEELC 234 (KLR)", Case Analysis (2025). Machakos ELCA (Memorandum of Appeal dated 17th May 2022) arising from Machakos CMCC No. 1187 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/234/eng@2025-01-22

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