IN THE COURT OF APPEAL

AT ELDORET

(CORAM: KARANJA, G.B.M. KARIUKI & MWILU, JJ.A)

CIVIL APPEAL NO. 151 OF 2006

BETWEEN

FREDRICK WAKHUNGU WANYAMA                                                                                                    

(Legal representative of JAMES WANYAMA)                                                                                    

STEPHEN WAFULA WANYAMA                                                                                                           

(Legal representative of JAMES WANYAMA)                                                                                   

LEAH SIKHOYA NDEMAKI                                                                                                                  

(Legal representative of ALEXANDER NDEMAKI MASIKA)                                                          

ELIUD MAUMO                                                                                                                                    

(Legal representative of   NAHASHON WATULO MASIKA                                                        

MAURICE NGOME MASIKA                                                                                                              

(Legal representative of NAHASHON WATULO MASIKA)                                                          

JUDITH NAKHUMICHA NAHASHON                                                                                               

(Legal representative of) NAHASHON WATULO MASIKA)                                                        

SUASAN NAMUKI MABONGA                                                                                                          

STANLEY MAYIKA MABONGA...........................................................................APPELLANTS     

AND

JOASH KISIANGANYI WANYONYI                                                                                                  

DAINA NASAMBU WANYONYI                                                                                                        

DINA WASIKE                                                                                                                                    

SAMSON WANYONYI                                                                                                                      

JUSTUS MURESIA                                                                                                                           

PATRICK MAMAI                                                                                                                              

STEPHEN WATWATI                                                                                                                       

BEATRICE WANYAMA WATWATI                                                                                                 

PAUL NAMUNYU                                                                                                                           

NEDI WANYAMA                                                                                                                           

PIUS KIMUNGUI                                                                                                                           

LENAHA NASIPONDI MAMAI...................................................................... RESPONDENTS
                                                                                       

(An appeal from the judgment of the High Court of Kenya at Kitale (Nambuye, J)

dated 2nd  November, 2004 but delivered by Jeanne Gacheche J.

in

H.C.C.C. No. 8 of 1997 (formerly ELDORET H.C.C.C. NO. 167 OF 1989)

********************************

JUDGMENT OF THE COURT

INTRODUCTION:

The appellants have appealed against the judgment  of the High Court of Kenya at Kitale (R. Nambuye  J, as she then was)  which was delivered on her behalf by Jean Gacheche  J on 2nd November, 2004.

The gist of the dispute giving rise to the suit  in which the judgment  appealed from was delivered is the sub-division and share allocation  of the suit properties known as Mbai Farm LR. No's. 6651/2 and 66697 situated within Trans Nzoia District (“the suit property”) to the partners, members or co-owners of the suit property. The dispute revolved around the amount of money paid as shareholding  by each of the partners. On the one hand, some of the partners claimed that they had contributed more money than the others were prepared to acknowledge. On the  other hand  the  respondents  were  asserted that  the full  amount  each member  was supposed to pay was Ksh 5,000/=  and that whereas a few of the members paid less, none of them paid more than the Ksh. 5,000/=. Since the size of the portion of land each member was to be allocated was dependent on the amount of money paid, it was imperative for each party to prove by way of adduction of evidence, the exact amount of money paid towards the purchase of the said properties.

It was however common ground that some four members who intended to contribute the 5,000 shillings agreed upon, had ran into financial difficulty and only managed to pay lesser amounts which we shall tabulate later on in this judgment.

The respondents in this appeal, who were the plaintiffs before the High Court, commenced their claim vide a plaint which was later amended and filed on 2nd November, 2004. In the amended  plaint they sought,  inter alia,  a declaratory  order to the effect  that the partners, members or co-owners of the suit properties were twelve  as stated in the Trans Nzoia District Land Control Board consent granted on 11th April 1980. The respondents also sought orders that the suit  properties be sub divided/surveyed  equally  among the 1st, 2nd, 3rd, 4th  and 6th plaintiffs and the 1st, 2nd and 3rd defendants and that the 7th, 8th, 9th and 10th plaintiffs and the 4th and 5th defendant’s jointly be given  a share of land equivalent to their respective contributions as tabulated  in Paragraph 17 of the amended plaint. The respondents further sought an order that each partner/member stays on the portion of land he/she had occupied since 1965.

However, the appellants by a defence and counter-claim dated 13th February, 1990 and filed on 14th February, 1990 denied that the respondents resided on the suit properties and that in any case the claim  was time barred under the Limitation of Actions Act. They contended that some respondents  had  no locus standi  in the matter on account  of the fact  that they were  not administrators of the estates of the deceased partners or members. They further contended that the late Enos Wanyama, Pius Kimungui  and the late Mamai Masakalia paid Kshs. 1,808/-, Kshs. 3,592/- and Kshs. 2,870 respectively but the sums had been refunded to each of the three who later left the suit properties.

As regards the Trans Nzoia District Land Control Board consent granted on 11th April, 1980 the appellants stated that the consent was obtained fraudulently in that the partners, members or co- owners of the suit properties were not party to it.

The appellants counterclaimed that the partners, members or co-owners who were not residing on the farm contributed an equal amount of money and were entitled to different portions of the suit properties. They therefore  sought the dismissal of the suit and further an order that the Trans Nzoia District Land Control Board consent granted on 11th April, 1980 be declared null and void, and that an order be made that the subdivision  approved by the Ministry of Lands and Housing in 1992 be followed.

In their reply to defence and counterclaim  the respondents denied that there was any lawful subdivision in 1992 or any other year sanctioned by the consent of the Land Control Board and contended that the lawful partners, members or co-owners of the suit properties were twelve in number. The respondents contended that the appellants' claim against the Trans Nzoia District Land Control  Board consent granted on 11th April, 1980 was bad in law and was time barred and as such the appellants were not entitled to the reliefs sought. The respondents asserted that the rightful owners of the suit land had not approved or consented to the issuance of the subdivision map of 1992 purportedly approved by the Ministry of Lands or any other map.

Background

The record of appeal shoes that sometime  in 1964 six persons identified the suit property for purchase. By an agreement dated 21st  of December 1964, L. Pratt Leach and G. N. Herbert on one hand agreed to sell the suit properties to Johnstone Mabonga (DW4), James Wanyama (DW2), Alexander  Ndemaki (DW2), Nahashon  Watulo (DW3), Dixion Watwati now deceased (PW4), and Justus Muresia (PW1) as purchasers on the other hand.

Pursuant to the sale agreement the suit properties were on the 14th May, 1965 transferred from the vendors to the purchasers  as tenants in common in equal shares for the purchase price of Kshs. 168,000/=. The titles to the suit properties were severally encumbered on account of loans owed  to the Land  and Agricultural  Bank  of  Kenya  and  the  Agricultural  Finance Corporation until the 5th August, 1975 when all the encumbrances were confirmed to have been cleared from the suit properties' titles. In the process of purchasing the property the founder members  agreed to bring in more  members to enable  them raise  the purchase price.  The founder members added eleven (11) other members, that is, Joseph Kasembeli, Peter Malaka, John Sitati,  Patrick Sitati,  Jefunea Yasele,  Enos  Wanyama, Pius  Kimuguni,  Jackson Masakani, Patrick Wamai, Nelson Wanyonyi Namaswa and Paul Namunyu.

Each of the members including  the founder members agreed to contribute Kshs. 5,000/- each towards the deposit and purchase price of the suit property. Before the encumbrances had been removed some members failed to meet their monetary contributions towards their respective shareholding  targets and as a result some resigned and left the group. Those who chose to leave the group were,  Jephenea Yasele,  Joseck  Kasembeli,  John Sitati,  Patrick sitati,  Peter Malaki and Johnson Kambeli. Upon their exit, each was refunded their share contributions  in full. However,  there were those who failed to pay the full contributions but remained in the group and claimed  a share in the suit property. These were, Pius Kimungui,  Enos Wanyama,Jackson Masakari and Johnstone Mabonga. However it is not in contention that Johnstone Mabonga, completed the payment in full later on. Subsequently,  a disagreement arose between the existing  members who had fully  paid their contribution and  those  that remained  and claimed  a share of the property despite their failure to pay the full amount.

Sometime in 1973 through minutes of several meetings, the members who had paid the full contributions  made a resolution  that the remaining  three members who had failed to pay the full amount for the shares be refunded their contributions. This matter was brought before the District Officer  who asked  the other members to give the  three  members  a short  time to complete their payments. However,  the members declined  except for Johnstone  Mabonga who supported  the extension  of time.  Later it  was  passed  that the contributions  of  Pius Kimungui  be refunded through the advocate while that of J. Masakari be refunded by N. Namaswa and P. Namunyu at his home. The three denied having received the said refunds.

Consequently, with the support of Johnstone Mabonga they filed Eldoret HCCC No. 52 of 1974 which sought  a declaration that a partnership existed between the members and an order that it should be dissolved or wound up with fair payments to them if any were found due. However,  this  case was not prosecuted  and, on the motion of the defence,  the same  was dismissed for want of prosecution  and as such,  the  matters in issue raised in that suit and the rights of the three ‘partners’ remained unresolved.

After the dismissal of the case, the members went to the Land Control Board to have the paid up members registered as proprietors  of the suit property. The application for consent from the Land Control Board enumerated  12 members,  including the three  that had  not paid their contribution in full. The application for consent led to a series of arbitral proceedings before a panel of elders under the chairmanship of the District Commissioner of Trans Nzoia which are titled civil case No. 52/73 Mbai farm. In these proceedings  Justus Muresia, confirmed that no receipts were issued when the members were buying the land but that their share contributions were being recorded in a book.

In presenting the respondents’ case the Late Nelson Namaswa testified that nine members completed payments of their shares and they  were  the only ones who subdivided that farm amongst themselves in 1975 and also shared the 200 heads of cattle each receiving  11 heads of cattle and the remaining 101 heads of cattle were sold off to pay the loan. He also confirmed that, Pius  Kimungui, Emos  Wanyama and Jackson  Masakari,    did not complete  the payment of their shares and therefore they were not allowed to enter or build on the land and so they remained outside the farm.

This is corroborated by evidence  of a  local  arrangement in 1976 where  the nine partners, members and co-owners, who had fully paid for the said suit property, subdivided it and gave to each member a subdivided  portion  for each to develop. However the three who had failed to meet  their financial  obligations,  sought to be included in the sub-division  based  on their contributions which were less than Kshs.  5,000/= for each.  This was not agreeable to all the members, especially  the founders  that is,   Justus  Muresia,  Dickson  Watwati, Nahashon Watulo, Johnstone Mabonga, Alexander Ndemaki, James Wanyama,  Nelson Namaswa, Paul Namunyu and Patrick Wamai.

The dispute was referred to elders and the District Officer who ruled that the share contribution would remain at Kshs. 5,000/- and that the three exiting members be given land in proportion to their contributions.

The elders made a finding that the farm records were being kept in a book, and that the receipts produced by Ndemaki were forgeries and were made in furtherance of a conspiracy  by a few members to get more land than they were entitled to. The elders ruled that all members apart from a few had paid ksh 5,000/= and were therefore entitled to equal portions of the land, and that those who had paid less than the ksh 5,000/= would get portions that were proportionate to their contributions.

This award was filed in Kitale SRMCC No.34 of 1988 for adoption  as judgment  of the Court. The same  was  however  challenged  by  James  Wanyama Masolo,  Johnstone  Mbonga, Alexander Ndemaki and Nahashon Watulo Masiwa who felt aggrieved by the decision, by way of a Notice  of Motion on 23rd November, 1988 seeking orders that the elders’ award be set aside or in the alternative it be declared  a nullity. On 12th January, 1989, the application  was allowed primarily on the ground of lack of jurisdiction  on the part of the elders’ as there was no formal referal to the elders from the court. The setting aside of the elders award led to the filing of Eldoret High Court Civil Case No. 167/89 which was later transferred to Kitale and given a new  case No. Kitale High Court Civil Case No. 8 of 1997. This is the case whose decision is now before us on appeal.

Meanwhile,  James  Wanyama Masolo,  in the name  of Mbai Farm,  applied  for the Land Control Board consent for subdivision of the Mbai Farm which was approved  and issued in 1990. Thereafter, some parties rushed to court seeking to quash the said consent vide Eldoret High Court miscellaneous application Number 24 of 1990. The application  was dismissed and being aggrieved by the dismissal,  James Wanyama Masolo (DW1) moved to the Court of Appeal and filed Civil Appeal No. 143 of 1992 seeking the same relief. The appeal is still pending awaiting the outcome of this appeal.

THE FACTS/ EVIDENCE:

Let us now revisit the evidence adduced before the trial Court  as we are enjoined  to do under Rule 29 of this Court’s Rules,  and as repeatedly  affirmed by this court in its decisions. (See Selle vs. Associated Motor Boat Company (1968) E.A. 123 at page 126),  where this Court held;

“…….. this Court  must reconsider the evidence, evaluate it and draw its own conclusions though it should always bear in mind that it has neither  seen nor heard the witness and should make due allowance in that respect…” See also Jivanji  vs. Sanyo Electrical  Company Ltd. (2003)  KLR  425

At the hearing, the respondents presented evidence in support of their claim through a total of twelve witnesses. However we will consider the testimony of 11 witnesses  as Francis Mungo Waswa (PW12) did not complete his evidence.   Justus Barasa Muresia (PW1)(Muresia) testified that he had resided at Mbai Farm since 1965. With regard to the membership of the Mbai Farm, he stated that initially there were six pioneer members only. However due to the acquisition of the Mbai Farm they were forced to increase membership to enable them pay the deposit, the balance of the purchase price and the cost of movable assets.

PW1 confirmed that the group increased their membership from 6 to 17 members.  The new 11 members  were  Joseph  Kasembeli,  Peter  Malaka, Joash Sitati,  Patrcik  Sitati,  Jefunea Yasele,  Enos  Wanyama, Pius  Kimungui, Jackson  Masakabi,  Patrick Wamai, Nelson Wanyonyi Namaswa and Paul Namunyu. He confirmed that these new members enabled the group to raise  the deposit of Kshs.  48,000/=  but they were left with a  balance  of Kshs. 120,000/=. To raise that balance, they borrowed loans from the Land and Agricultural Bank of Kenya  and the Agricultural Finance Corporation.  These loans subsisted until the 5th August, 1975 when all the encumbrances were confirmed  to have been cleared from the suit properties' titles.  However,  Joseph Kasembeli,  Peter  Malaka, Joash  Sitati, Patrick Sitati, Jefunea Yasele exited the group before the completion of the loan payment. This left 12 members in the group who according to him constitute the membership of Mbai farm to date.

However, PW1 confirmed  that there was a dispute with regard to the membership of the three members, Pius Kimungui, Enos Wanyama and James Masakari. To settle the dispute with the support of Johnstone Mabonga the three filed Eldoret HCCC No. 52 of 1974 which sought a declaration that a partnership existed between the members and that it should be dissolved or wound up with fair payments to them if any WERE found due. However,  this case was not prosecuted and on the motion of the defence, the same was dismissed for want of prosecution and as such it did not resolve the matters in issue and the rights of the parties. Muresia (PW1) contended that it was not correct that the members were nine. He confirmed to the court that there were twelve members.

With regard to contributions  and share allocation  of the land he stated that the pioneer members took occupation of the Mbai Farm in 1965. It was agreed that each of the members, both the pioneer and the additional members, were to contribute Kshs. 5,000/- each towards the deposit and purchase price of the Mbai Farm. Consequently, each of the members should obtain equal shares of the Mbai Farm. However, he acknowledged that of the 12 members, only 9 members paid up the contribution of Kshs.  5,000/- in full. These members  were:  Justus  Muresia, Alexander  Ndemaki,  James  Wanyama, Dickson  Watwati, Nahashon  Watulo, Nelson Namaswa Wanyonyi,  Paul Namunyu and Patrick Wamai and Johnstone Mabonga.  He confirmed  that the rest of the members had made contributions  as follows: Pius Kimungui – Kshs. 3,592/-; Jackson Masakari – Kshs. 2,870/-; Enos Wanyama – Kshs. 1,808/-.   He confirmed that in 1973 the members had made a resolution  that the three members who had failed  to pay in full for their shares be refunded  their contributions. It was  passed that the contributions of Pius Kimungui  be refunded through the advocate while that of J. Masakari be refunded by N. Namaswa and P. Namunyu  at his home. These refunds were never effected. He stated that the failure to pay in full did not affect their membership and therefore they had a right to the share of Mbai Farm in proportion to their contribution. He therefore disputed the appellants’  allegations  that  the  pioneer  members  had paid Kshs.  70,000/- as  in  and  of themselves they could not raise Kshs. 48,000/=.

Muresia pegged his testimony to the Mbai Farm minute book and an extract  of the minute book which  were produced as exhibits  1 and 2 respectively.

With regard to the Land Control Board consents, Muresia testified that the consent of 1980 was not obtained fraudulently. He stated that the members had agreed that they would share out the land once  the debt had  been  fully  settled.  The distribution  was  to be according  to a member’s contribution.  Moreover, the 1980 application for the consents had been necessitated by the directive from the Head of State that all sleeping partners were to be included  in the registration of the property. Subsequently, all the members had George Kapten, advocate apply to the Land Control  Board as a result of which six other members were included in the Mbai Farm  title. The six  members  were  Nelson  Namaswa,  Patrick Wamai, Paul Namunyu, Jackson  Masakari  and Enos  Wanyama  and Pius  Kimungui.  He, however,  contested the consents for sub-division obtained in 1990  as a fabrication of the appellants  as there was no resolution for such an application  or subdivision of the Mbai Farm. Moreover, the application form was not signed by all the members of Mbai Farm and also the hearing for the consent was not attended by all the members. He relied on the application for consent of the Land Control Board dated 16/1/1980  attached to a list of all the 12 members, Minutes  at the Land Control Board and Letters of consent dated 11/4/1980 which were all produced  as evidence  before the court.

He confirmed that the titles of land were issued in the name of the pioneer members only and the other six members, Paul Namunyu, Wamai, Enos Wanyama, Pius Kimungui, Jackson Masakari, Namaswa were not included. Despite being shown receipts of refund that tally with the contributions of the three disputed members, he denied the fact that the three received their refund of contributions  towards the share of the Mbai Farm.  He stated that although the others were not fully paid up members, they participated  as members in meetings. He further cast doubt as to the authenticity of the appellants’ exhibits that lacked his signature and those of other members.

Paul Namunyu (PW2) one of the additional members maintained that he is a fully paid up member and asserted that the members paid an equal amount for equal shares. He stated that the only thing remaining was for a survey  to be conducted and the land be demarcated for the registration of his portion of Mbai Farm.

Lenah Mamai (PW3) based her testimony on the information passed on to her by her late husband. She testified that she was the holder of the Grant of letters of administration to the estate of her late husband issued to her at Kitale on 18th February, 1992, which she produced as exhibit No. 8. She claimed that her late husband was involved  in the purchase of Mbai Farm and paid for shares in the suit properties of Kshs. 2, 870,020 but she did not have any receipts. She testified that her husband resided on the farm but upon his death in 1986, he was buried at a place called Chwele. She further denied knowledge of her late husband being refunded shares in 1973.

Beatrice Wanyama Watwati (PW4) and Stephen Wekesa Watwati (PW5) premised their locus standi in the matter  and right to present  the case  on behalf  of the deceased  Dixion Watwati who died on 26th May  1989 on a Grant  of letters of administration issued  on 6thFebruary, 1991 (exhibit  9). They confirmed their knowledge of the  deceased  as a founder member. However, their testimonies showed that none of them were part of the deceased’s life at the time of the purchase or contribution  towards the suit properties. They did not have any receipts  to support  the contribution. However  they  relied  on farm  records  to show  his contributions. They confirmed that they were settled at the farm.

Diana Nasambu (PW6)  and  Joash  Wanyonyi Kisiangani (PW7)  the wife  and  son respectively of the late Nelson Wanyonyi  Namaswa testified as his legal representatives. They produced a Grant issued on 16th March, 1998 and  confirmed  that they resided on Mbai Farm but had no records to show that the deceased was a member of the Mbai Farm. However, they both confirmed that he resided at the Mbai Farm but when he died he was buried at Namwela.

Patrick Wamai (PW8) testified that he resided on the Mbai Farm since 1974. He corroborated the fact that the membership was initially comprised of six and he was among those that were incorporated  to assist  the group to ease  the  financial burden of the purchase price.  He confirmed  that he paid his share of Kshs. 5,000/- in full. He paid the sum in two parts, Kshs. 3,200/- and completed the balance later in 1968, but was not issued with any receipt. He further confirmed that there was a ledger book that was used to record the payments that were made.

Methodeus  Pius  Wasike Kimungui (PW9) (Kimungui) testified that he only paid Kshs. 3,592.60  and did not receive  any  receipt  for the payment. He participated  in the group activities as a member  from 1965 and was given the position of chairman of the group in 1968 and further as a farm manager between 1968 and 1969. This was recorded in minute No. 135 of 68. He corroborated Muresia’s evidence on the fact that there were disagreements on the share allocation  of  the Mbai Farm  especially  to the members  who had not completed  their contributions.  The disagreements continued till 1974 when Mabonga filed a suit to settle the dispute but it was dismissed for non-attendance. Further  he confirmed  that another dispute arose in 1980  as a result  of the Head of State’s direction to register sleeping members. The arbitrator who came to resolve whether to remove the three members who had not paid in full concluded that the land should be shared out in accordance to their share contribution.  He confirmed  that he has not been refunded to date and claimed a share of the farm in accordance with his contribution together with others who had paid less.

On cross-examination  he denied  ever  knowing the advocate Lindsell  or ever going to his offices to receive any money. He further stated that his contribution was Ksh 3,592/- contrary to the alleged receipted refund of Kshs. 3,500/-.

Shem Mutai Muthami (PW10), an officer in charge of records at the office of the District Commissioner’s office in Trans Nzoia presented to the Court the application for the consent of the Land Control Board dated 16/1/1980 in respect of Mbai Farm. The application was by the six original members seeking transfer and registration  of Mbai Farm to the pioneer members and the additional  six with a clear  indication of each member’s contribution. However, the application form had only appended on it the signatures of two pioneer members. The Board deliberated on the application  on 11th April 1980 under minute 4/80 section C where all the applicants attended with their advocates. There were no objections raised and the consent was granted.  On cross-examination,   Muthami (PW10) confirmed that there   was   a  second application before the Land Control Board on 9/3/89 requesting for the subdivision of the Mbai Farm into individual agricultural  portions, school, dip and roads. The applicant  was James Wanyama Masolo (DW1) and the registered owner was indicated as Mbai Farm with only one signature appended. This application  was considered under minute C. The consent was deferred as only some of the members appeared. The members present were advised to come with all the members. The hearing before the board came up severally and was adjourned each time for failure of attendance by all the members. On 22/2/90 when the members appeared before the board they were referred to the D. O. Saboti and Chief of Kiminini for them to enlighten the Board on the contentious   issue  as to whether  Mbai Farm  had  a membership   of 9 or 12 members. He verified that the documents  suggested that the two consents of 1980 and 1990 were given for subdivision of the property but there seemed to be some evidence of a human error involved.

Joseph  Barasa  Wanyama (PW11) son  of late  Enos  Wanyama listed  as the  7th  Plaintiff testified as a representative of the estate  of Enos Wanyama  evinced  by grant produced as exhibit  22. He  confirmed that his  father  Enos Wanyama  settled  at  Mbai Farm  in 1968. However,  he had no record or documentation to prove contribution  towards ownership of the property save for the farm records.

On their part, the appellants/defendants presented  a total of four witnesses. James Wanyama Masolo (DW1) (Wanyama)  gave the same background as to the acquisition of the Mbai Farm from Mr. L. Pratt Leach and G. N. Hebert  as Muresia (PW1). However with regard to the membership of Mbai Farm, he confirmed that the pioneer members and owners of the Mbai farm were six in number and that there have never been any additions. In support he relied on exhibits D.1, D.2 and D.3, that is, the certificates of registration of the Mbai Farm  as business name, sale agreement that he and others signed for the purchase of Mbai Farm and titles of registration of the Mbai Farm respectively, which reflect the names of the pioneer members only.

He testified that the purchase price was Kshs. 262,000/=  and the deposit required was Kshs. 82,000/-. This he explained was the total of the purchase price of Kshs. 168,000/= and loose assets of 94,000/=. He stated that despite the fact that the title of registration of the Mbai Farm indicated that the original members were tenants in common with equal shares, each of the members contributed  unequal amounts towards  the purchase price, in accordance with their ability. He testified that the group raised Kshs. 250,748.40\= and outlined the contributions as follows:-

1. Johnstone Mabonga- Ksh.53,797.10/=

2. James Wanyama-Ksh. 70, 256.31/=

3. Alexander Ndemaki-Ksh.45,299.30/=

4. Nahashon Watulo-Ksh.43,287.99/=

5. Justus Muresia-Ksh.20,572.80/=

6. Dickson Watwati-Ksh.18,534.90/=

He explained that each member could not have contributed  Kshs. 5,000/= each as the 30,000/- which would have been raised would  not be adequate payment for the deposit. He further stated that they thereafter  took a  loan to buy the loose  assets on Mbai Farm which were worth 94,000/= and not 84,000/- as stated by PW1.

He accepted that there was an inclusion  of six extra members as PW1  stated. However,  he stated  that they were  only incorporated  to assist  in raising  the money  for farm  projects, specifically, wages and weeding. He denied that they made any contributions  towards the Mbai Farm’s  purchase price.   The additional six were to contribute  Kshs. 10,000/-  each but were unable and therefore they were directed to contribute Kshs. 5,000/= but they failed to pay it in full.

He stated that upon their failure to pay the said Kshs. 5,000/-, a resolution  was passed by the members to refund each of them their contributions. He produced exhibit D13, a minute of the meeting dated 9.8.1965 which indicates that the Mbai Farm members held a general meeting signed by the 12 members where the resolutions  passed were that whoever  failed to complete their 5,000/= contribution would not be a shareholder  of the farm and would not attend the meetings.

In contrast to Muresia’s (PW1)  and Kimungui’s (PW9)  evidence he testified that the three who had failed to pay in full, that is, Pius Kimungui, Jackson Mamai and Enos Wanyama were refunded and therefore they had no claim against the Mbai Farm members. To prove the refunds, he produced  several receipts marked exhibit D.10; a receipt  of Kshs. 2,870.20 dated 20th February  1973 in favour  of Jackson  Mamai  and another  of Kshs.  3592.50  dated 13 th February, 1973 in favour of Pius Kimungui.  However there was no receipt in favour of Enos Wanyama’s refund. He also relied on a letter dated 13/4/1967 written by Nahashon Namaswa and a letter dated 26/3/1971  (marked as exhibit D.11) signed by the pioneer members addressed to the three concerning  the refund of their contributions which indicated that the three were refunded Kshs. 2500/-, 1600/-, and 3200/- respectively.  He explained the variance between the letter dated 26/3/1971  and the receipts through a declaration of an interest of 6% in favour of the contributions  that increased the final amount refunded to each of them as indicated  on the receipts  produced.  He  further relied  on a  letter dated 30/10/72 which forwarded Pius Kimungui’s payment through his advocate known  as Lindsell.

He stated further that those who were not refunded that is, Paul Namunyu, Nelson Namaswa and Paul Wamai are still on Mbai Farm. However, he clarified that they were not on the farm as full members because they failed to meet the deadline set for the full payment of the Kshs. 5,000/=.

With regard to the consent, Wanyama,  (DW1) contested that the consent of 1980 did not have the authority of all the pioneer members on the titles of registration. He testified that he did not fill  in the application  form for the consent. He only came to know of the consent application form in the suit No. HCCC 24/90 at Eldoret High Court. He indicated to the court that the 1980 consent  application   form was  made  by Nelson  Wanyonyi, Namaswa,  Pius  Kimungui, Dickson Watwati  and Justus Muresia. He contended in his testimony that the only registered members on the title that executed the form were Justus Muresia, and Dickson Watwati. The rest purported to be members and owners and yet they were not registered owners. He stated that he did not know of this application until 1983 at an arbitration  before the District Officer, Mr. Limo.

However,  he maintained that the consent issued in 1990 and the sub-division map drawn by an undisclosed person but signed by DW1 (Wanyama) as the owner of the farm and marked as an exhibit was valid. He also confirmed that exhibit marked D.32 demonstrated approval from the Department of Lands Nairobi  vide letter dated 3rd November, 1992.

In disagreement with the testimony of (PW11) that Wanyama’s son resided on the farm, he stated that Enos Wanyama  had never resided on the Mbai Farm. He claimed that Watwati was buried at the Farm; Namaswa’s  family  resided on Mbai  Farm but Namaswa  was buried at Namwela Farm, while Pius Kimungui was not recognized and was chased away from the Farm in 1969.Nahashon Watulo Masiwa (DW2) Watulo one of the pioneer members reiterated the events that led to the purchase of the farm and identified  the six original proprietors  as indicated  on the titles of registration. He corroborated the evidence of Wanyama (DW1) and confirmed that receipts were issued in acknowledgement of the members’ contributions  towards the purchase of the  farm.  He produced  his  receipts  in evidence  of the contributions  that were  being receipted. He denied that Masakari’s family resided at Mbai Farm.

He stated that he was the first chairman of the group and the Mbai Farm and his secretary had been Alex Ndemaki. On cross examination he stated that members would hand over money and be issued with a receipt  on the same day. He acknowledged that the first receipts were not printed Mbai Farm but before the ones they produced were issued, the old ones were destroyed. He denied that the receipts were a fabrication. He claimed he was entitled to 197 acres but only occupied 40 acres at the moment.  On re-examination  he verified that he did not fabricate the receipts and he made the payments on the date indicated on the receipts.

Susana Namuki Mabonga (DW3) widow of the late Johnstone Mabonga produced a Grant of letters of administration  issued to her on 31st  August  1995 as exhibit D. 32. She narrated that she married her late husband in 1961 as the fourth wife and that she settled at Mbai Farm with him. The late  husband  died on 22nd September,  1994. She  confirmed the  deceased was  a founder member of Mbai Farm. She also had knowledge that Masakari was buried at Namwela at a place called Namukholo. She produced receipts No. 225 of Kshs. 10,995.30 dated 13 th June 1964, No. 252 of Kshs. 40,990.00 dated 21st  December, 1964 and No. 231 of Kshs. 1,852.40 dated 8th  January, 1965 adding up to Kshs. 53,797.70. She could not explain whether the deceased and the members,  Watulo  and James Wanyama Masolo, had connived to cheat.

Maurice Lusweti Ndemaki (DW4) gave evidence on behalf of his father, Alexander Ndemaki. He produced four receipts which illustrated  his share contributions  which he produced as D.34 a to d namely No. 227 13th June 1964 of Kshs. 8,465.150, No. 348 dated 21st  February 1964 for Kshs. 32, 011.00, No. 233 dated 8th January 1965 for Kshs. 1572.80 and No. 238 dated 4th May 1965 for Kshs. 3,250.00 adding up to Kshs. 45,299.30. He however, could not shed light on the coincidence of the similar dates on the receipts of his late father’s counterparts.

After hearing the parties, and considering the evidence placed before it, the trial Court allowed the prayers on the amended plaint on grounds that the contributions  of the incoming members had gone towards purchasing an interest in the suit property. The Court stated that:-

“…the finding of this Court  that even if the incoming  members raised money to pay inputs and diesel for the farm  machinery  no agreement was exhibited  by the pioneers to show that  the incomers were informed that their contributions were not going to buy them an interest in land…”

The High Court also held that all the 12 disputants were tenants in common of Mbai Farm in equal shares for those who had fully paid up their shareholding of Kshs. 5,000/-. Those who had paid less were entitled to shares equal to their contribution. The High Court further held that the dismissal of HCCC No. 52 of 1974 did not bar the Court from revisiting the issues raised in the plaint and adjudicating upon them with finality as the matters therein had not been adjudicated on and the defendants  had not raised the plea of res  judicata in their defence. Finally, the Court declared the consents obtained in April 1980 and 1990 null and void and proceeded to determine share allocation  of the members and ordered for survey and subdivision in accordance with the allocations.

THE APPEAL

Dissatisfied with the decision of the learned Judge the  appellants  filed this appeal vide the Memorandum of Appeal dated 23rd June, 2006 which raises the following substantive grounds of law and fact:-

“1. That the learned trial  judge erred in Law not  to have  dismissed the original  4th and  8th Plaintiffs'  suit  the  same  having  been  filed  by persons who  had no  letters of administration for estates  of deceased persons.

2.  That the learned trial  judge had no valid  reasoning  to have heavily relied on the evidence of PW-1  while disregarding the evidence of DW-

1.

3. That the learned Judge erred in law and fact not to have sufficiently assessed and/or analysed the evidence on record.

4. That the learned Judge had no valid reasoning to have heavily relied on the evidence of PW1 while disregarding the evidence of DW1.

5. That the learned trial Judge erred in law and fact to have found that all the disputants were tenants in common in Mbai Farm in equal shares.

6. That the learned trial judge erred in law and in fact to have found and held that the Deceased partners’ shares were debts recoverable  from the registered proprietors in the manner ordered in her judgment.

7. That the learned judge erred in law and in fact to have disregarded the fact that the 4th and 5th defendants had admitted by the plaint to have withdrawn  Kshs. 500 leaving their share at Kshs. 4,500/-.

8. That the learned trial judge erred in law and in fact to have found that Pius Kimungui, Jackson Masakari  and Enos Wanyama had not been refunded their monies.

9. That the learned trial judge erred in law and in fact to have held that the claims of the 7th, 8th, 9th and 10th plaintiffs were not time barred.

10. That the learned trial  judge erred in law and in fact to have made orders not based on the pleadings and prayers in the plaint.

11. That the judgment was pronounced after the mandatory  42 days period.

12. That the judgment  was written  by a judge who  had been suspended from the bench.

13. That the judgment was not signed by the judge who wrote the same.

14. That the  judgment   was  read   while the  original   1st,  2nd     and  3rd Defendants  were dead and substitution thereof had not been done by the said Defendants' personal representatives.”

At the hearing of this appeal Mr Wekesa wanyama, one of the appellants prosecuted the appeal on his own behalf and that of the co-appellants. He informed the Court that he was abandoning all the above grounds save for grounds 3, 4, and 14. He submitted that the main issue before the court is the determination of ownership of land. He argued that the claim by the respondentswas not supported by any documents on record. He also contended that the 1 st  Plaintiff lacked locus standi to move the court for the orders because he was not one of the registered members of the partnership registered in the name of Mbai Farm as shown by certificate on the record at pg. 206. He faulted the learned trial Judge for allowing other members who had not paid their contributions to benefit from the land. He contended that the learned Judge relied on a doubtful note book yet, the money that was taken as loan was not counted as any shares. He stated that the money awarded as loan should have been calculated as part of their contributions to shares. Moreover, in his view the calculations of the Judge do not agree with the documents on record. He therefore prayed that the appeal be allowed.

In opposing  the appeal,  Mr  Simiyu  learned counsel  for the respondents,  urged that the judgment of the  High Court should  be affirmed.  He argued  that the case was  correctly determined with the reliance of evidence from two witnesses that Judge identified  to guide her in the proceedings. He pointed out to the Court that this matter is an old one where properties were purchased in 1965 and had generated many suits some of which are yet to be concluded. He also informed the Court that only one of the original defendants is still alive and is very sickly, and hence the need to bring this matter to a conclusion.

He demonstrated that the Judge reasonably determined the dispute having believed PW1 more than DW1 and she gave her reasons for it. Given that the learned Judge had the chance to see the witnesses  and  assess their  demeanor, she arrived  at the right decision  and  assessed the evidence properly. He stated that he was in agreement with the learned Judge's finding that those who left had not been refunded their money despite the appellants’ argument that those who failed to raise the Kshs. 5,000/= were refunded their money. He also confirmed  to this Court that the transfers have not yet been done but the Surveyor  has seen the land.

Mr. Wekesa in reply contended that the amounts were refunded. However,  the Judge dismissed the receipts stating that there was no evidence that the money was ever received.

EVALUATION BY THE COURT

As can be deciphered from the above analysis and the three grounds of appeal taken up by the appellants at the hearing, this appeal largely revolves around issues of fact as opposed  to points of Law.

Black’s Law Dictionary defines the two terms as follows;

“Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts.”

In distinguishing a matter  of fact from that of law Denning  J. drew  a boundary  as to when  a judge sitting on appeal can interfere with a finding of fact.

In the English  case of Bracegirdle v. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 the court held that;

“The question  whether a determination   by a tribunal  is a determination  in point of fact or in point of law frequently  occurs. On such a question there is one  distinction  that must  always  be  kept  in mind, namely,  the  distinction between  primary   facts  and  conclusions  from those facts.  Primary  facts are facts   which are   observed   by   the   witnesses  and   proved   by   testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary  facts is always a question of fact. It is essentially  a matter for the tribunal  who sees the  witnesses  to assess their credibility  and  to decide the primary  facts which  depend on them. The conclusions from  those facts are sometimes conclusions of fact and sometimes conclusions  of law. In  a case under  the  Road  Traffic Act, 1930, s.  11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the  case here.  The  conclusion  drawn  by these justices from the primary  facts was not one that could reasonably be drawn from them.”

Adopting the above reasoning this Court in William Muthee Muthami v Bank of Baroda (Civil Appeal No. 21 of 2006) [2014] eKLR pronounced itself as hereunder:-

“As to findings made on matters of fact, this Court will only interfere where the finding is based on no evidence, or on a misapprehension of the evidence or where the learned Judge is demonstrably shown to have  acted on wrong principles in reaching the finding”–  See Mwanasokoni V. Kenya Bus Services Ltd, [1985] KLR 931.

The question we must therefore ask ourselves in this appeal is whether the learned Judge fell into error by relying on the testimony of the witnesses who appeared before her. The learned Judge is faulted for giving more credence to the evidence of PW1  as opposed to DW1.  Conversely,  one would ask, why believe DW1 and not PW1? We are reminded by the locus classica case of Selle VS Associated Motor Boat Company (supra) and many other decisions of this Court that the trial Judge has the best opportunity   to assess  the truthfulness  and veracity  of the  evidence  presented before  the court as opposed  to the appellate Court which has no opportunity to see and hear the witnesses as they testify. The trial Judge was in better stead to assess the demeanour  of the witnesses  as they testified in chief and also as they answered questions on cross examination.  It was from the learned Judge’s encounter with these two witnesses that she decided which one to believe and which of them was less reliable. She did not make that decision on a whim. She gave her reasons for doing so in her judgment  as can be seen from the following observation.

“PW1 was fairly honest  save for the evidence leading  to issuance of the consent of 1980  which  has been faulted.  As for DW1 the court agrees with the submissions of the Plaintiff’s counsel that his evidence is unreliable.”

The learned  Judge enumerated  several  reasons  on the record  for finding the testimony of Muresia (PW1) more credible than that of Wanyama (DW1). The learned Judge found DW1 to be outrightly dishonest  in most  of his testimony.  Among other reasons,  she  found it impossible to believe that the members could raise the amounts  as alleged  by DW1 as that would defeat the need or logic to obtain the loan from the banks. Moreover, Wanyama (DW1) agreed with portions of minutes and the extract of the minutes except that of the contributions by the parties, yet his signature was appended on them. It was difficult to believe him where on one hand he calls the minutes  a fabrication as the former records were left in the farm house and destroyed and yet, he agreed with majority of the excerpts in the minutes before the court.

With regard to the credibility  of a witness,  we call  in aid this Court’s  decision in Kenya Commercial Bank Ltd v Stephen Mukiri Ndegwa & another (Civil Appeal 132 of 2008) [2014] eKLR where the Court stated;

“Where the trial court’s findings depend on credibility of the witnesses, the court will  also  have  gauged this through cross examination and observations on the demeanor of the witnesses. The  findings  of the court based on credibility  of  witnesses will thus  command  considerable deference and this Court will generally  be slow to interfere.  See  Tayabu v. Kinanu [1983] KLR”

The Supreme Court of Kenya in its recent decision in the case of  Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others , Supreme Court Petition No. 2B of 2014 quoting in extenso from the  Judgment  of the Supreme   Court of the Philippines, in the cases of Republic v. Malabanan, G.R. No. 169067, October 632 SCRA 338, 345 and New Rural Bank of Guimba v. Fermina S Abad and Rafael Susan;   G.R  No. 161818 (2008), cited with approval the following pronouncement.

‘We reiterate  the distinction between a question of law and a question of fact. A question of law exists when the  doubt or    controversy concerns the correct  application  of law or  jurisprudence to  a certain  set  of facts; or   when   the issue  does  not call   for an examination of the probative value  of the evidence  presented,  the truth or  falsehood  of facts  being admitted. A question  of fact  exists when the doubt or difference arises as to the truth  or falsehood of facts or when the query invites calibration of the whole  evidence considering mainly  the  credibility  of the  witness,  the existence and relevancy of specific surrounding circumstances,  as  well   as their  relation  to each other and  to the whole, and  to the probability   of the situation.  This Court  cannot  adjudicate  which party told the  truth… by reviewing  and  revising  the  evidence   adduced at the  trial court. Neither  verbal  sophistry,  nor artful misinterpretations  of supposed facts can compel this  Court  to re-examine  findings  of fact which  were made by the trial  court….absent  any  showing  that there are significant issues involving  questions of law.’

And also:

“We  cannot  overemphasize  the commonplace   that  the trial Court is alone the  custodian of true   knowledge  of witnesses and their quirks, and  can pronounce  on  issues of credibility. Short  of an appraisal  of  witness account  appearing as  absurd, or  decidedly irrational, it behoves  the Court   sitting  on appeal  to respect the trial Judge’s appraisal of primary fact.”We are in total agreement with the above pronouncements of the Supreme Court on this well- trodden area of the law.

Consequently, the trial court having given sufficient reasons for finding PW1’s testimony more credible than DW1’s, this Court must exercise circumspection in departing from these findings of fact. As stated in Watt vs. Thomas (1947) 1 ALL ER 582 House of Lords (Sir O’Connor)

“It is a strong thing for an appellate court to differ from the finding, on a question of fact of the judge who tried the case……..and who has had an advantage  of seeing  and  hearing   the  witnesses. An appellate  court  has indeed  jurisdiction  to review  evidence  in order  to determine  whether  the conclusion  reached   upon that evidence should  stand.   But   this   is  a jurisdiction which should be exercised with caution;  it is not enough that the appellate court might itself have come to a different conclusion.”

The Court of Appeal has applied this principle of exercising caution in the case of  Peters –vs- Sunday Post Ltd. [1958] EA 424, where the Court stated that:-

“while an appellate   court   has  jurisdiction   to  review   the  evidence  to determine  whether  the  conclusions  of the  trial judge  should  stand,  this jurisdiction is exercised with caution;  if there  is no evidence to support a particular conclusion,  or if it is  shown  that the trial  judge has failed  to appreciate the weight or bearing of the circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate to so decide.”

That was also the principle  advanced by this Court in the case of  Astariko E.A. Abule –vs- Elijas M. Ambaisi - Court of Appeal Civil Appeal No.228 of 1998. It is never enough that the appellate court might have come to a different conclusion.  See also  Geoffrey Kihunyu Wanjura –vs- Gichiru Kiguta & another – Court of Appeal Civil Appeal No.67 of 1997.

After a careful perusal of the evidence, the findings of the learned trial judge that the evidence of DW1 was not credible are reasonable and cannot be said to be outrightly  wrong. We find no misdirection on the part of the learned judge in this aspect. We find no basis whatsoever  for interfering with the learned Judge’s findings of fact. We find ground 4 devoid of merit and the same must therefore fall by the wayside.

We now come to ground No.3 which is quite broad. The same cudgels  the judgment of theHigh Court on the ground that the learned Judge failed to “sufficiently assess and/or  analyse the evidence on record”.

As stated earlier on in this judgment, this court as a first appellate Court is charged with the responsibility to revisit and re-analyse afresh the evidence adduced before the trial court and to make its own independent findings and determination. We have already rehashed the evidence of the trial court but we shall revisit it shortly. We have also no basis for interfering with the learned Judge’s findings of fact unless, of course, her conclusion after considering the said factual evidence and inferences was clearly wrong. It is with that in mind that we now proceed to reconsider the said evidence and make our own conclusion as to whether the learned Judge arrived at the right decision.

As  stated  earlier   on, this  dispute is  all   about  the members’  contributions and   their commensurate  shares in the suit  property.  What were  the amounts  paid by each  member; whether at some point some members were refunded their contributions and were not therefore entitled to any land; and ultimately  whether the burden of proof was discharged to the required standard?

From the sum total of the evidence adduced before the High Court, it is not disputed that all the members were supposed to contribute Ksh 5,000/= each for the deposit of the purchase price. The record of those who paid that sum is not disputed. There was also evidence to the effect that some three members took back their deposits. It is not in dispute either that some three named members did not top up their amounts to the agreed figure of Ksh 5,000/= According to the appellants, these people were refunded their contributions. After considering the evidence of the minute books and minutes of several meetings that were produced in evidence, the trial Court was satisfied that there was paucity of evidence to prove that the said contributions  were refunded.

Although the appellants dismissed the minute book (exhibit 1) as a fabrication and said that the correct minute book was left in a dilapidated  house where it was rained on and then destroyed, we find that DW1’s testimony confirms the accuracy of part of these minutes and therefore that holds water. In evaluating  the entries, we note that minute 48/69 of the meeting  held on 16/5/1969 attended by all the original members and the additional members enumerated all the contributions of the members.  It confirms that all  the members contributed  Kshs. 5,000/= equally except Pius Kimungui who contributed Kshs. 3,592.60, J. Masakari – Kshs. 2,870.20 and E. Wanyama Kshs. 1,808.00. This part contribution is also acknowledged in minute 60/69 of the meeting held on 15.10.69.

In minute 22/72 of the meeting held 17.6. 72 it was reported by the Chairman that he had taken the money equivalent to the share contributions  of those who had not completed payment to the advocate to have the same refunded. However, Enos Wanyama declined to receive his refund. Evidence produced for the refund of these amounts is questionable  as correctly  evaluated by the learned Judge; the letter from the advocate with regard to the refund is based on condition of acknowledgement of receipt.  There  was no proof of acknowledgment of receipt of any refunds by the three. In addition, the receipts produced were questionable and could not be verified as authentic.

The Trans Nzoia proceedings before the Panel of Elders under the Chairmanship  of S.K.K. Limo, District Commissioner in Civil case No. 52/73 produced as exhibit 5, also corroborates the testimony of Justus Muresia, Nelson Namaswa, Dickson Watwati, Johnstone Mabonga, Patrick  Wamai,  James   Wanyama, Pius   Kimungui confirming that  each   member’s contribution  was Kshs. 5,000/= and that no receipts were issued. The so called receipts by the appellants showing payments of larger amounts than the Ksh.5,000/=  were repeatedly said to be fabricated as the majority  of the original members did not recognize them. In addition it was common ground that the farm records were being recorded in a book and therefore the receipts were a conspiracy by Ndemaki. The court dismissed the said receipts for lack of authenticity. Both parties also confirmed  that they appeared before the District Commissioner on several occasions  where  it  was  decided  that the land  would be shared  in accordance  with each member’s contribution.

We note that the learned Judge perused and elaborately  analyzed the evidence produced and made findings on admissible evidence. The admission of evidence and the assessment of the documents produced indicates that the Court arrived at the correct conclusion that there were 12 members; each member was required to pay Kshs. 5,000/=; and that the three members who had not paid in full  were  not refunded  their contributions   and therefore  are  still  entitled members. We also agree with the learned Judge that the consents to sub-divide and transfer the land were null and void ab initio. We say so because, as rightly noted by the learned Judge, the applications to the Land control Board were  either  made by people  without the requisite authority to do so, or were based on misinformation as to who the registered owner of the land was.

Did the respondents prove their case to the required standard?

The standard of proof in this case is  on a balance  of probability. In weighing whether the burden on the balance of probabilities has been discharged the House of Lords in Miller vs. Minister of Pensions (1947)  2 ALL ER 372 (Lord Denning  J stated:-

“If at the end of the case the evidence turns the scale definitely  one way or the  other,  the  tribunal   must  decide accordingly,  but  if the evidence is  so evenly  balanced  that the  tribunal  is  unable to  come  to  a determinate conclusion one way or the other, then the man must be given the benefit of doubt. This means the case must be decided in favour  of the man unless the evidence against  him reaches the  same degree of cogency as required  to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability  but not so high as is required  in a criminal case.  If the  evidence  is  such  that the  tribunal   can  say “we  think more probable than not”, the burden is discharged but the probabilities are equal then it is not.”

In discharging  the burden of proof on a balance  of probabilities  this Court in the case  of Wareham t/a A.F. Wareham & 2 others -Vs- Kenya Post Office Savings Bank (2004) 2 KLR pronounced itself  as follows:-

“The  burden of proof  is on the plaintiff  and the degree of proof is  on a balance  of probabilities.   In  discharging  the burden  of proof,  the  only evidence to be adduced is evidence of the existence or non-existence of the facts in issue or facts relevant  to the issue.  It follows that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”

Guided by the principles articulated above, and after re-analysing the evidence adduced before the trial Court in its entirety, and bearing in mind that we did not have the advantage of seeing the witnesses  as they testified, and therefore had no opportunity to assess their demeanor, we are satisfied that the learned Judge arrived at the right conclusion. We find no grounds to justify interference with the said findings.

On the appellants’ submission that the learned Judge should have converted the money they had been  granted   as a  loan into shares  in their favour,  we do not find any  logic in that submission. If the appellants applied for the loan, they did so not in their private capacities but on behalf  of Mbai Farm. The loan was  therefore  advanced  to Mbai Farm  and not to the individuals. From the evidence on record, the loan was repaid using the proceeds from the Farm  and  not from the appellants’  pockets.  On what  basis then would the said  loan be converted into shares to the advantage of the appellants to the exclusion of the other members? We find not. The learned Judge did not fall into error or misdirection in failing to convert the said loan into shares as proposed  by the appellants.

On account of the foregoing evaluation of the evidence, we are satisfied that the respondents discharged their burden of proof and showed on a balance  of probabilities that the agreed full member’s contribution  was Ksh.5,000/- and each contribution  afforded a member  an equitable proportion of share allocation  of the Mbai Farm.  That brings us to the last ground of appeal urged before us i.e ground 14. According  to the appellants, the judgment was delivered while the 1st, 2nd and 3rd defendants were dead and no substitution  had been done. If that was so, would that invalidate the judgment so delivered?

First and foremost, Order XXIII rule 1 of the retired Civil Procedure Rules provided that;

“The death of a plaintiff  or defendant shall not cause the suit to abate if the cause of action survives or continues.”

This therefore means that the suit was still subsisting as at the time the judgment was delivered notwithstanding the fact that some of the defendants had died and had not been substituted. Order XXIII  rule 2 on the other hand allows the court to make an entry on the record where some parties  die but still  proceed with the suit  at the instance of the surviving  plaintiff  or defendant. It is not clear from the record whether the court made such an entry in the record, but even if that was not done, that did not render the judgment invalid, more so because there was  a surviving  defendant  who was fully  represented  by counsel  when the judgment  was delivered. It is just a procedural technicality which would not in any way affect the substance of the judgment. That ground must also fail.