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Court of AppealPartially AllowedCivil Appeal No. 197 of 2005· [2013] KECA 268 (KLR)

Nanyuki Equator Sacco Co-operative Society Ltd v Nyeri Sacco Society & another [2013] KECA 268 (KLR)

Court of Appeal of Kenya
20 September 2013
1,289 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed the Co-operative Tribunal's Chairman can hear interim applications alongside other members, restoring a dispute between two SACCOs for a full hearing.

What this practically means

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Executive summary

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This appeal concerned the composition of the Co-operative Tribunal when hearing interlocutory applications. The dispute between two farmers' co-operative societies was referred to the Tribunal under Section 80 of the Co-operative Societies Act, 1997. The 1st respondent sought interim restraining orders, which were heard by the Tribunal's Chairman sitting with two members; the Tribunal allowed the application, restraining the appellant's expansion into Nanyuki. The High Court (Ibrahim J) quashed those proceedings by certiorari and prohibited the Chairman from continuing with the hearing, holding that Section 80(4) mandated the Chairman to sit alone on interlocutory applications. The Court of Appeal allowed the appellant's appeal. It held that Section 80(4) does not make it mandatory for the Chairman to sit alone; so long as the Chairman or his deputy presides, the presence of other qualified members is unobjectionable, because a Chairman sitting alone does so on behalf of the full quorum. Only a non-Deputy-Chairman member hearing such an application, or the Chairman or deputy being flanked by non-members, is impermissible. The Court further held that the order of prohibition went beyond the question before the judge and had the effect of determining the dispute before it was heard on merit. The appeal was allowed, the High Court orders of 22nd February 2005 were set aside, and costs were awarded to the appellant. Neither the 1st respondent nor the Attorney General appeared at the hearing despite service. This decision binds subordinate courts and tribunals on the proper composition of the Co-operative Tribunal for interlocutory matters.

Key legal issues

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01

Whether Section 80(4) of the Co-operative Societies Act mandates the Chairman to sit alone when hearing interlocutory applications

Holding

The provision is not mandatory as to composition; the Chairman may sit with qualified members provided he or his deputy presides

Reasoning

Section 80(4) confers jurisdiction on the Chairman acting alone, but the normal quorum of the Tribunal under Section 80(1) is the Chairman plus two members, and the Chairman may sit with one member or alone. Reading the provisions together, the Chairman sitting alone acts on behalf of the full quorum, so the presence of qualified members when he presides over an interlocutory application cannot be objectionable.

p. 3
02

Whether the High Court judge erred in quashing the Tribunal's ruling of 8th August 2003

Holding

Yes; since the Chairman's composition was permissible, the order of certiorari was made in error

Reasoning

The learned judge held that Section 80(4) was mandatory and that by sitting with two members the Chairman exceeded his jurisdiction. This court disagreed, concluding the composition was lawful, and therefore the quashing of the proceedings, ruling and order could not stand.

p. 3
03

Whether the order of prohibition restraining the Chairman from continuing with the hearing was properly granted

Holding

No; the prohibition was broader than the question before the judge and effectively determined the dispute before hearing on merit

Reasoning

The question before the High Court concerned only the hearing of the Notice of Motion for restraining orders, not the Statement of Claim itself. Prohibiting the Chairman from continuing with the hearing of the entire dispute had the effect of finally determining it at an interlocutory stage, which was impermissible.

p. 3

Legal principles established

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  • Section 80(4) of the Co-operative Societies Act does not require the Chairman of the Tribunal to sit alone when hearing interlocutory applications; so long as the Chairman or his deputy presides, the presence of other qualified members is permissible and does not vitiate the proceedings
  • The Chairman hearing an interlocutory application alone does so on behalf of the full quorum of the Tribunal
  • The only impermissible compositions are where a member other than the Deputy Chairman hears an interlocutory application, or where the Chairman or his deputy is flanked by non-members of the Tribunal
  • A court should not issue an order of prohibition that determines a dispute before it is heard on merit

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the High Court issued on 22nd February 2005 in Nbi. H.C.C.C. Misc. Application No. 886 of 2003 set aside
  3. 3.Costs to the appellant

Authorities

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Legislation

  • Co-operative Societies Act, 1997Section 80(1)
  • Co-operative Societies Act, 1997Section 80(4)
  • Co-operative Societies Act, 1997Section 80(5)
  • Co-operative Societies Act, 1997Section 77(1)(b) and (c)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. Misc. Appl. No. 886 of 2003
Jurisdiction invoked
First appeal from the High Court in a judicial review matter (certiorari and prohibition) arising under Section 80 of the Co-operative Societies Act, 1997

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nanyuki Equator Sacco Co-operative Society Ltd v Nyeri Sacco Society & another [2013] KECA 268 (KLR)", Case Analysis (2013). Civil Appeal No. 197 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/268/eng@2013-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.