Ngobitwa Farmers Co-operative Society Limited & 3 others v Musa Kiptai Mulwo

10/2287, 2288, 2289 and 2290. The genesis of the matter lies Page 1 of 15

page 2 of 27

in the operations of the 1 st Appellant, Ngobitwa Farmers’ Co- operative Society Limited (the Society), a landbuying company. The respondent, Musa Kiptai Mulwo, claimed that he was a member of the Society and had purchased 20 acres of land. He was allocated the land and took possession, but it was later subdivided into the four suit properties, which are now the subject of the dispute. 2. The core of the dispute is whether the 1st appellant, without the knowledge and consent of the respondent, fraudulently subdivided the 20-acre parcel, hived off 5 acres (parcels 2287, 2288, and 2289), and registered them in the names of the 2nd, 3rd and 4th appellants respectively. The remaining 15 acres were registered as parcel 2290 in the name of the respondent, Musa Kiptai Mulwo. 3. To contextualize the appeal, we shall give the background to the dispute. The respondent filed a plaint on 30 th January 2014, stating that he became a member of the 1 st appellant in 2000. He claimed that he purchased 20 acres of land. He pleaded that he took possession of the land, fenced it, and developed it extensively. He averred that in the year 2011, Page 2 of 15

page 3 of 27

he went to the Page 3 of 15

page 4 of 27

land registry to collect his title and he was surprised to note that the acreage had been reduced to 15 acres. He later discovered that a portion of his land had been secretly subdivided into parcels 2287, 2288, and 2289 and registered in the names of the 2nd, 3rd and 4th appellants. He argued that there was no available land for the appellants to subdivide and that the subdivision and transfer were done illegally, without his knowledge and consent. 4. The 1st appellant did not file any response or defence to the suit and at the hearing, it did not call any witness or tender evidence. 5. The 2nd, 3rd and 4th appellants filed a joint statement of defence on 10th March 2014. They denied the respondent's claims and put him to strict proof. They asserted that they were fully paid- up members of the 1st appellant and were lawfully allocated and registered as the proprietors of parcels 2287, 2288, and 2289 respectively. They claimed that they had paid for the land and held valid title deeds. They maintained that the respondent had removed boundary beacons and fenced their land as part of his own. Page 4 of 15

page 5 of 27

6. The suit proceeded to full trial and the learned Judge, in the salient paragraph, held as follows: ‘‘I find that the plaintiff is the rightful owner of the suit land as the defendants irregularly acquired the title deeds. They did not satisfy the court as to how they acquired the titles. They have not provided the consent from the Land Control Board which allowed them to subdivide the land amongst themselves. Further, they have not provided any proof of payment for the parcels of land or payment of survey fees whereas the plaintiff has provided proof that he made such payments to the 1 st defendant. On the last issue as to who is entitled to the suit land, the plaintiff has proven that he made payments for the 20 acres vide receipts. The defendants have failed to prove how they acquired the titles. There is no proof of payment of any kind to the society that suggests that they paid for the value of the parcels of land. I have considered the evidence of the parties, the submission of Counsel, judicial authorities cited and come to the conclusion that the plaintiff has proved his case against the defendants to the required standard. I therefore make the following orders: a) A declaration that there was no parcel available for the 1st defendant to subdivide and distribute to the 2nd,3rdand 4th Page 5 of 15

page 6 of 27

defendant known as LR No. SOY/SOY/NAVILLUS BLOCK 10/2287, 2288 Page 6 of 15

page 7 of 27

and 2289 since the same had been paid for, shown and allocated to the Plaintiff. b) A declaration is hereby issued that LR No. SOY/SOY/NAVILLUS BLOCK 10/2287, 2288 and 2289 belongs to the Plaintiff and is part of LR No. SOY/SOY/NAVILLUS BLOCK 10/2290 and were illegally registered and transferred by the 1st defendant to the 2nd, 3rd and 4th Defendants without the consent of the plaintiff. c) An order of perpetual injunction is hereby issued restricting the defendant from entering or interfering with the plaintiff's parcels of land which are fenced all round which the plaintiff has been in occupation since 2000 as stated in (b) above. d) A declaratory order is hereby issued that LR No. SOY/SOY/NAVILLUS BLOCK 10/2287, 2288 AND 2289 were illegally obtained and registered in the names of the 1st, 2nd, 3rd and 4th defendants and the same are hereby cancelled and be registered in the name of the plaintiff. e) The Defendants to pay costs of the suit to the Plaintiff.’’ 7. The appellants, being dissatisfied with the said judgment, filed a notice of appeal and a memorandum of appeal dated 11th October 2019 containing a whopping seventeen grounds Page 7 of 15

page 8 of 27

of Page 8 of 15

page 9 of 27

appeal. We have taken the liberty to summarize the grounds as follows: that the Judge erred in finding that the respondent had proved his case and that the appellants' titles were illegally acquired; that the Judge erred by concluding that no land was available for allocation to the 2nd, 3rd and 4th appellants and that the land in dispute belonged to the respondent; that the Judge erred by holding that the registration and transfer of parcels 2287, 2288, and 2289 to the appellants were illegal and without the respondent's consent; that the Judge erred in restricting the appellants from the suit land and in concluding the respondent was in occupation since 2000; that the Judge erred by not giving the 1 st appellant a chance to be heard, as its counsel's failure to participate was an act of negligence that should not be visited upon the Society; and that the Judge erred by failing to consider that the disputed parcels of land are a product of the subdivision of the 1 st appellant's land, which was done lawfully through mutation. 8. We have carefully considered the record of appeal, the documents and the submissions and hold that the following issues arise for determination: Page 9 of 15

page 10 of 27

a) Whether the trial Judge erred by finding that the respondent had proved his case to the required standard. b) Whether the 2nd, 3rd, and 4th appellants proved a legal and valid root of title to the suit properties. c) Whether the failure of the 1st appellant's counsel to lead evidence amounted to a denial of a fair hearing, vitiating the trial; and d) Whether the trial Judge erred in the orders and declarations she issued. 9. We begin by reminding ourselves of our duty as a first appellate court. We are mandated to re-evaluate, re-consider and analyze the evidence on record and arrive at our own independent conclusions. However, we must bear in mind that we did not have the advantage of seeing and hearing the witnesses, and therefore must give due allowance for that fact. See Selle & Another vs Associated Motorboat Co. Ltd & Others [1968] E.A. 123. 10. We shall first deal with the issue of the 1 st appellant's failure to file defence or tender evidence and whether it was denied the right to a fair hearing. The 1st appellant argues that the failure to tender evidence, file pleadings, or cross-examine Page 10 of 15

page 11 of 27

witnesses effectively condemned the Society unheard and violated its right Page 11 of 15

page 12 of 27

to natural justice, particularly given that it is the registered owner of the mother title from which all other parcels emanated. It blamed the advocate who was acting for it and argues that it should not suffer because of mistake of its advocate. 11. We have carefully considered this argument. It is not in doubt that the 1st appellant was a key party in the suit but did not participate in the trial. It was the entity that subdivided the land and allocated the parcels. Its evidence would have been crucial in explaining the process of allocation, the basis for the subdivision and the relationship between the parties. But the key question is who is to blame for its non-participation? The record will give the true story. 12. The record shows that the 1st appellant was properly represented by counsel. The record further reveals that after several mentions, the trial took off on 14.3.2018. The 1 st appellant was represented by Mr. Aseso advocate and he cross- examined the witness who gave evidence on that day. The suit was adjourned to 20.6.2018 and on that day Mr. Aseso was present. The 1st respondent closed his case. Mr. Page 12 of 15

page 13 of 27

Aseso informed Page 13 of 15

page 14 of 27

the court that he was ready to proceed, and he is recorded to have said as follows; “…I have talked to my client, and I will not be calling any witness. I wish to close the 1 st defendant’s case.” 13. Considering this sequence of events, the 1 st appellant cannot claim that it was denied an opportunity to be heard. The failure to file pleadings or call evidence was attributable to its counsel, who was duty-bound to act in the client’s best interest. It is settled law that counsel’s mistakes should not invariably be visited upon an innocent litigant. Equally, however, a party is bound by its counsel’s conduct and retains responsibility for its case throughout the trial, including monitoring the pleadings filed and the progress of the case. A party cannot remain inactive and later shift blame to its advocate. In this case, counsel expressly stated that the 1st appellant did not wish to call any witness. If that was untrue, the 1st appellant has not shown what action it took against counsel; it has not even produced a letter of protest. 14. In Eldoret Grains Limited vs Gilbert Kiptoo Kipkoech & 14 Others (Civil Application 108 of 2019) [2021] KECA 273, the

page 15 of 27

Page 9 of 15

page 16 of 27

Court of Appeal cited with approval the case of Rajesh Rughani vs Fifty Investment Ltd & Another (2005) eKLR, noting that if the advocate is guilty of inaction, it is not an excusable mistake. However, the primary responsibility for the conduct of a case rests with the party. We say no more on this issue save that it is non-meritorious and an afterthought at best. 15. The more critical issue in this appeal is whether the 2nd, 3 rd and 4th appellants' titles were obtained lawfully and whether the learned Judge was right in ordering that they be cancelled. The trial Judge correctly found that the respondent, as the plaintiff, bore the initial burden of proof that the land the subject of the dispute belonged to him and that the titles held by the 2nd, 3rd and 4th appellants ought to be cancelled. The record shows that the respondent gave evidence that he became a member of the 1 st appellant in the year 2000 and was member number 98. According to him, he initially bought 11.3 acres from the 1st appellant but later bought additional parcels from other members and his total acreage became 20 acres. He informed the court that Page 10 of 15

page 17 of 27

he moved into possession and fenced that land. Further, he produced evidence of payment, including deposits Page 11 of 15

page 18 of 27

to the 1st appellant’s account. He was cross-examined by the advocates for the appellants and his evidence was consistent. 16. The respondent's evidence was detailed and persuasive. He adduced numerous payment receipts to the 1 st appellant spanning many years. While some receipts were in the names of third parties, he adequately explained that he had purchased their shares. His evidence was corroborated by witness statements and meeting minutes from the Baringo Group, a sub-group of the Society. Crucially, his claim that he had fenced and occupied the 20 acres since the year 2000 was uncontroverted. He was in physical possession, a strong element of ownership when it is considered together with the payment receipts. 17. Considering the fact that the respondent gave evidence to show that the titles held by the 2 nd, 3rd and 4th appellants were not valid, as there was no land available for subdivision and sale by the 1st appellant, the burden then shifted to the appellants to prove the validity of their titles. See section 107 and 109 of the Evidence Act, Cap 80 Laws of Page 12 of 15

page 19 of 27

Kenya; and the Supreme Court Page 13 of 15

page 20 of 27

decision in Dina Management Limited vs County Government of Mombasa & 5 others [2023] KESC 30 (KLR). 18. A careful perusal of the record shows that the 2 nd, 3rd and 4th appellants mounted a remarkably weak defence. They each held title deeds but were unable to explain how they acquired them. Under cross-examination, they admitted the following: (a) DW1, Albina J. Kimonge, (2nd appellant) admitted she had no receipt for payment for the land, had never taken possession, and did not attend the Land Control Board. She merely signed documents brought to her home. (b) DW2, Joseph Kiprotich Ruto, (3rd appellant) stated he had no receipts for his payments, had never taken possession of the suit land, and had not attended the Land Control Board. (c) DW3, Anthony Cheboiboch, (4th appellant) also had no receipts for his alleged payments of Kshs. 135,000, was shown the land in 2014 (long after the Respondent had been in possession), and admitted he had never taken possession. 19. The appellants were therefore holding onto titles to land they had never occupied, could not prove they had paid for, Page 14 of 15

page 21 of 27

and could not explain how they obtained the land. It is also Page 15 of 15

page 22 of 27

important to note that they had not even attended the Land Control Board to obtain consent. 20. As was held by this Court in Munyu Maina vs Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, “where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title..." 21. The appellants failed to go beyond the title deed. They did not prove the consent of the Land Control Board, the payment of the purchase price, or the payment of survey fees, all of which are hallmarks of a lawful acquisition. The trial Judge was correct in finding that their titles were a product of a "flawed process" and were thus impeachable under Section 26(1)(b) of the Land Registration Act, which allows for the cancellation of a title that has been acquired “illegally, un-procedurally or through a corrupt scheme.” 22. The orders granted by the trial Judge were a logical and Page 16 of 15

page 23 of 27

necessary consequence of her findings. Having established that the respondent was the rightful owner of the 20 acres and that Page 17 of 15

page 24 of 27

the appellants' titles were irregularly obtained, the Judge was justified in ordering the cancellation of those titles and the registration of the land in the respondent's name. The issuance of a perpetual injunction was also correct to safeguard the respondent's peaceful possession and occupation, which had been established since 2000. The award of costs to the respondent follows the general principle that costs follow the event, as stated in Section 27 of the Civil Procedure Act. 23. Having independently re-evaluated the evidence on record, we are in full agreement with the findings of the learned trial Judge. At the risk of repetition, we hold that the 1 st appellant's non- participation was due to the actions of its own counsel and did not vitiate the trial, especially given the overwhelming evidence against the appellants. Further, the appellants failed to prove the root of their titles. They were unable to demonstrate any legal or formal process by which they acquired the suit parcels. The respondent, by contrast, provided credible evidence of his membership of the Society, payment, and physical possession. Page 18 of 15

page 25 of 27

24. Accordingly, all the grounds of appeal fail, and we dismiss the appeal with costs to the respondent. Accordingly, the judgment Page 19 of 15

page 26 of 27

and decree of the Environment and Land Court at Eldoret, (M.A. Odeny, J.) dated 22nd January 2019, is hereby upheld in its entirety. Dated and Delivered at Eldoret this 25th day of September, 2026. M. GACHOKA C.Arb, FCIArb. ..................................... . JUDGE OF APPEAL W. KORIR ..................................... . JUDGE OF APPEAL L. M. NDOLO ..................................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR Page 20 of 15

page 27 of 27