Mbithi v Musyoka & another (Environment and Land Appeal 17 of 2022) [2025] KEELC 234 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial court had jurisdiction given section 76 of the Co-operative Societies Act
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.
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.
Whether the suit share formed part of the estate of Thyaka Musyoka and whether the appellant acquired it lawfully
The suit property formed part of the deceased's estate and the appellant acquired it unlawfully; his dealings were null and void.
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.
Whether the respondents proved their claim on the burden of proof
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.