ERNEST MUIRURI NJOROGE & 28 OTHERS v KABIRU KARANJA & 4 others [1997] KECA 10 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that disputes between co-operative members and their society's officials must go to the Co-operative Commissioner, not the High Court.
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 dispute between the appellants (members of Naivasha Kikuyu Farmers Co-operative Society Limited) and the respondents (its office bearers) over allotted plots concerned the business of the registered society so as to attract the mandatory referral provisions of section 80 of the Co-operative Societies Act (Cap 490)
- 2.Whether the appellants could shed their status as members of the society in connection with the allotted plots so as to oust the application of section 80
- 3.Whether the superior court had jurisdiction to adjudicate the dispute
Key legal issues
#Scope of section 80 of the Co-operative Societies Act (Cap 490)
A dispute between members of a registered co-operative society and its office bearers over plots allotted out of land still owned by the society concerns the business of the society and must be referred to the Commissioner under section 80(1); the High Court lacks jurisdiction.
The court found no serious effort by the appellants to disprove that parcel Gilgil/Karunga/Block 6, from which the plots were allotted, remained the property of the society. The appellants being members, their dispute with the society's officers over those plots necessarily concerned the society's business. Section 80(1) mandatorily refers such disputes among members, or between members and the society's committee or officers, to the Commissioner, ousting the superior court's jurisdiction.
Consequence of a finding of want of jurisdiction on the fate of the suit
A suit filed before a court without jurisdiction is a nullity and should be struck out rather than dismissed, since there is no suit in existence to dismiss.
The High Court had ordered the appellants' suit dismissed for want of jurisdiction. The Court of Appeal corrected the form of that order: if the court had no jurisdiction, no suit ever existed before it, so dismissal was conceptually wrong and striking out was the appropriate order. The decision below was otherwise upheld.
Legal principles established
#- Members of a co-operative society cannot shed their status as members in connection with plots allotted to them out of land still owned by the society, so as to avoid the mandatory referral of disputes concerning the business of the society to the Commissioner under section 80 of the Co-operative Societies Act; the superior court has no jurisdiction over such disputes.
- Where a court has no jurisdiction over a dispute, there is no suit before it capable of being dismissed; the proper order is that the suit be struck out.
Court orders
#- 1.The appellants' appeal is dismissed with costs
- 2.The appellants' suit in the superior court is struck out instead of being dismissed as ordered by the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No 543 of 190
- Jurisdiction invoked
- First appellate jurisdiction over the ruling and order of the High Court (Juma, J) dated 6th February 1996 in HCCC No 543 of 190
Relief refused
#The appellants' appeal against the High Court ruling upholding a plea of want of jurisdiction under section 80 of the Co-operative Societies Act
The dispute concerned the business of the registered society and was therefore referable to the Commissioner under section 80; the superior court had no jurisdiction
Costs
The appeal is dismissed with costs (costs to the respondents)
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.
The appellants cannot therefore be permitted to shed their status as members of their society in connection with those plots so as to deny their society the protection conferred upon it by section 80 of the Act in relation to the determination of such dispute.
In the result, we think that the relevant provisions of the aforesaid section are applicable to the dispute in question and uphold the decision of the superior court that it has no jurisdiction to adjudicate upon that dispute.
Accordingly, we dismiss the appellants' appeal with costs and order that their suit in the superior court be struck out instead of being dismissed as was ordered by that court for the reason that if the said court had no jurisdiction over the dispute between the appellants and the respondents, then, there never was any suit before it for dismissal.
Issues in the judgment
#The judgment records the appeal as from HCCC No 543 of 190, an apparently erroneous year (likely 1990, given the amended plaint was filed in the superior court on 26th April 1990); the number is reproduced here as printed.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "ERNEST MUIRURI NJOROGE & 28 OTHERS v KABIRU KARANJA & 4 others [1997] KECA 10 (KLR)", Case Analysis (1997). Civil Appeal 114 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/10/eng@1997-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.