12.This being a first appeal, the role of this court is to re-evaluate and subject the evidence to afresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court also takes note of the fact that it did not have the benefit of seeing or hearing the witnesses testify and therefore has to make an allowance for the same.
13.It was held in the case of Selle vs Associated Motor Boat Co.  EA 123 as follows:-
14.Similarly, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates  e KLR, on the duty of first appellate court, the court stated that;
15.I have considered the entire, Record of Appeal as well as the written submissions proffered by the respective parties. The issue for consideration is whether the tribunal erred in failing to find that the appellant was entitled to the 3rd plot or compensation thereof independently of the 4th plot.
16.The case of the appellant before the tribunal was advanced by two witnesses, the Appellant (CW1) and her son Michael Muchiri Kanari (CW2). The claimant (CW1) had stated before the tribunal that her husband was a member of the respondent’s society where he had four plots. After her husband’s death, she obtained letters of administration and the proceeded to inquire about her husband’s interests with the respondent.
17.She met the Chairman who confirmed that indeed there were four plots, but the husband had apparently not completed paying for the shares. She was asked to pay kshs. 5,000 for change of names and ksh.14,000 to complete payment of the shares. She further stated that her husband had paid ksh.3,000 for issuance of title for plot 693B. She was however never informed that the plot was on a way leave.
18.In cross examination she averred that she met the chairman and the committee members of the respondent when the minutes of 30.3.2012 were read out to her.
19.CW2, Michel Muchiri Kanari identified the claimant as his mother. He confirmed having accompanied his mother to the meeting of 30.3.2012, and that was the first time they went to follow up on the issue of his father’s property. That is also when the respondents mentioned the issue of the wayleave on one of the plots and they also said that they would get the fourth plot, even as the issue of the third plot was being resolved. They were also told to finish paying what his father had not paid.
20.In cross examination, CW2 reiterated that they completed the payment for the shares thereby getting 735 shares from 149½, thus his father became a fully paid member. They were never informed that they did not qualify to be entitled to the plot.
21.The case of the respondents was advanced by one Leonard Ndungu Mbugua (RW1), the chairman of the 1st respondent. He gave an account of how the society started as a coffee farming society with 740 acres of coffee plantation way before the 1980s. They subsequently sold their land in four phases, such that in the final analysis, each member was entitled to four plots. For the 1st and 2nd phases, each member was to get plots of 1/4 of an acre, while for phase 3 and 4, the plots were measuring 1/8 of an acre.
22.He averred that Peter Kanari Kahati had died in year 2011 and when the claimants came to their officers, they were requested to complete paying for shares but they never did. However, in good faith, the respondents advised the claimant to top up so as to fully benefit. That the idea was not to qualify for the fourth plot, but to benefit the member come other benefits.
23.RW1 further stated that they had established that the member in question had sneaked in a balloting for the fourth phase, yet he was not supposed to get such a ballot. He added that balloting was done in year 2002 and up to year 2012 the deceased had not come for the processing of the fourth plot. By then, (year 2012), processing of the fourth plots had long been concluded in year 2004. However, since the claimant qualified for the 3rd plot but it fell on a way leave, they were given the fourth plot.
24.In cross examination the said witness stated that as per the minutes of 30.3.2012, the claimants were requested to pay so as to qualify for the 3rd and 4th plots. He confirmed that the claimants went ahead and paid. For the plot where the claimants had paid a sum of ksh. 3,000 it was not receipted because the plot fell on a way leave.
25.From the foregoing evidence, I find that there is no controversy that one Peter Kanari was a member of the respondent society. The relationship of the claimant to the deceased is also not in dispute. Further, there appears to be consensus that a member of the respondent was entitled to four plots.
26.It has also emerged that by the time the claimant met the respondents in year 2012 to inquire about the plots of Peter Kanari, the latter had not completed paying his shares which stood at 147½ instead of 735 shares. It has also emerged that plot 693B was found to belong to the deceased Peter Kanari but the same fell on a way leave.
27.In the evidence tendered by Michael Muchiri the son of the appellant before the tribunal, he indicated that they had been given the 4th plot. That evidence was in tandem with the statement of claim where the plot in issue is just one, plot No. 693-B.
28.At this juncture, I pose the question as to; whether the claimant was disqualified from getting the 3rd plot (693–B), and whether the 4th plot was a compensation for the 3rd plot.
29.A perusal of the documents availed before the tribunal indicates that the respondents used to deal with various issues through minutes. This can be discerned from the Record of Appeal minutes of 30.3.2012 at page 41, minutes of 23.3.2002 at page 47, minutes of 11.12.2002 at page 62 and minutes of 5.4.2012 at page 68.
30.In light of the foregoing it follows that the decisions and communications made by the respondents to their members have to be discerned from the resolutions as captured in the minutes.
31.In his evidence before the tribunal RW1 had stated as follows:
32.The minutes of 30.3.2012 at minute No. 3 read as follows:
33.The minutes of 5.4.2012 at minute No. 3 in respect of member no. 399 Margret Wanjiru Ndungu were recorded as follows:
34.What resonates from the above analysis is that it is the respondent who urged the claimant to regularize and finalize the payments, and that such payments were to enable the claimant to fully qualify for 3rd & 4th plots, and that the payments were fully paid 5.4.2012. Another issue to be discerned is that the claimant was to be compensated for plot 693-B which was on a way leave. RW1 never disowned the aforementioned minutes. Thus his claim that the claimant never paid was unfounded.
35.It follow that there is no evidence to indicate that the claimant was ever disqualified from regularizing her position as a member of the respondent. Further, there is not the slightest evidence to indicate that the respondents ever resolved that plot 693-B was being compensated with the 4th plot.
36.As right of submitted by the Appellant, the Respondents are estopped from reneging on their resolutions in relation to the claim of the appellant.
37.In Samson S. Maitai & another v African Safari Club Limited & Another  eKLR, the court had this to say in relation to proof.
38.In the case at hand, I find that the appellant had proved her claim of entitlement to the 3rd plot. Thus the Tribunal erred in dismissing her claim.
39.The court has considered that with the passage of time, the chances of there being an available plot may be slim. But again, the parties have not addressed this court on the question of quantum of compensation. The court will apply its own discretion in giving an award, which I now peg at sh.1,500,000.