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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court had jurisdiction to try the dispute filed before it by the respondents
- 2.Whether the respondents proved their case to the required standard to warrant the findings by the trial court
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#Setting aside the trial court's judgment and nullifying the nullification of the transfer of share number 574
The appellant failed to prove acquisition of the suit property through nomination or grant of representation; his dealings amounted to intermeddling
Registration of the appellant as the rightful owner of share number 574 at Konza Ranching and Farming Co-operative Society
The suit property was found to form part of the estate of Thyaka Musyoka, subject to succession
Costs of the appeal and the trial court to the appellant
Appeal dismissed with costs to the respondents
Costs
Appeal dismissed with costs to the respondents (the appellant to pay costs of the appeal and of the suit).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Jurisdiction is everything, and a court must first be satisfied that it has the jurisdiction to determine a matter before embarking on determining the same.
In the premises, I find no merit in the appeal before me, which I hereby dismiss with costs to the respondents.
The trial court did not err in ordering that the suit property be restored to the deceased and that the appellants dealings thereof are a nullity.
it is clear that Mulekyo had no authority to pass the suit property to the appellant and therefore I find and hold that the appellant acquired the same unlawfully as he was neither a nominee of the deceased, nor a personal representative of the deceased's estate as at the time he allegedly acquired the suit property.
Issues in the judgment
#The names of the respondents are not expressly stated in the extracted judgment text; the parties are identified only as the plaintiffs/administrators of the estate of Thyaka Musyoka, so the case title relies on inference from the record.
The judgment refers to the deceased's wife Mulekyo passing the share to the appellant, but the appellant elsewhere claims the membership was given to him by the deceased in the deceased's lifetime, an internal inconsistency not resolved by the court.
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.