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Court of AppealDismissedCivil Application No. NAI. 5 of 2016 (UR 4/2016)· [2016] KECA 591 (KLR)

Godfrey Kinuu Maingi & 4 others v Nthimbiri Farmers Co-operative Society [2016] KECA 591 (KLR)

Court of Appeal
6 May 2016
PKP. Kihara KariukiEGE. M. GithinjiPhilomena Mbete MwiluP. M. Mwilu
1,325 words in judgment
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The bottom line

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The Court of Appeal ruled it has no power to hear appeals from High Court decisions on Co-operative Tribunal cases, because the law makes the High Court's decision final.

What this practically means

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Executive summary

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The five applicants, former members of the management committee of Nthimbiri Farmers Co-operative Society, sought leave to appeal to the Court of Appeal and a stay of execution of a Co-operative Tribunal award of Kshs 5,075,244.50 made against them for mismanagement. The Tribunal's award had been upheld by the High Court (Sergon, J.) on 22nd May 2015, which found no breach of natural justice and no merit in the constitutional issues raised. The applicants argued before the Court of Appeal that section 81(3) of the Co-operative Societies Act, which makes the High Court's decision on appeal final, was ultra vires section 84(7) of the retired Constitution, and that their fair-hearing rights under section 77 had been violated. The Court rejected these contentions. It held that section 84(7) of the retired Constitution conferred a right of appeal only in fundamental-rights matters and not an automatic right in cases such as this; that the Court of Appeal's jurisdiction under the retired Constitution flowed from section 64, which depends on what is conferred by law; and that because section 81(3) makes the High Court's decision final, no appeal lies to the Court of Appeal. Consequently the Court could not grant leave to appeal, and, lacking jurisdiction over the intended appeal, it also refused the stay of execution. The application was dismissed with costs to the respondent.

Key legal issues

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01

Jurisdiction to grant leave to appeal under section 81(3) of the Co-operative Societies Act

Holding

The Court of Appeal cannot grant leave to appeal because the statute makes the High Court's decision on appeal from the Tribunal final

Reasoning

Section 81 of the Co-operative Societies Act permits one appeal from the Tribunal to the High Court and provides that the decision of the High Court on any appeal shall be final. The Court of Appeal's jurisdiction under the retired Constitution was such as conferred on it by law; since the Act confers none, the Court cannot purport to grant leave to appeal.

p. 3
02

Scope of section 84(7) of the retired Constitution

Holding

Section 84(7) did not confer an automatic right of appeal to the Court of Appeal in the applicants' matter

Reasoning

Section 84 of the retired Constitution governed the procedure for protection of fundamental rights and freedoms. Its subsection (7) granted a right of appeal only to a person aggrieved by a determination of the High Court on such a fundamental-rights matter, not in ordinary civil disputes such as this one.

p. 3
03

Stay of execution pending intended appeal

Holding

Stay cannot be granted where there is no jurisdiction to entertain the intended appeal

Reasoning

Having found that the Court lacks jurisdiction to grant leave to appeal against the High Court decision, the jurisdictional foundation for the stay of execution of the Tribunal's award falls away, and the application must fail with costs.

p. 3

Legal principles established

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  • Where a statute expressly makes the decision of the High Court on an appeal final, the Court of Appeal has no jurisdiction to entertain, or to grant leave to prefer, a further appeal from that decision
  • Section 84(7) of the retired Constitution conferred a right of appeal only in matters concerning the protection of fundamental rights and freedoms under Chapter 5, and did not confer an automatic right of appeal in other matters

Court orders

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  1. 1.The application be and is hereby dismissed with costs to the respondent
  2. 2.Leave to appeal to the Court of Appeal is refused, there being no jurisdiction to grant it
  3. 3.Stay of execution of the Co-operative Tribunal award is refused

Authorities

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Legislation

  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 58
  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 73
  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 74(2)
  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 81
  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 81(1)
  • Co-operative Societies Act, Chapter 490 of the Laws of Kenyasection 81(3)
  • Constitution of Kenya (retired)section 77
  • Constitution of Kenya (retired)section 77(9)
  • Constitution of Kenya (retired)section 84(7)
  • Constitution of Kenya (retired)section 64
  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 39
  • Court of Appeal Rules, 2010Rule 42
  • Court of Appeal Rules, 2010Rule 43
On appeal from
High Court
Civil Appeal No. 199 of 2009
Jurisdiction invoked
Rules 5(2)(b), 39, 42 and 43 of the Court of Appeal Rules, 2010 (application for leave to appeal and stay of execution)

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, "Godfrey Kinuu Maingi & 4 others v Nthimbiri Farmers Co-operative Society [2016] KECA 591 (KLR)", Case Analysis (2016). Civil Application No. NAI. 5 of 2016 (UR 4/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/591/eng@2016-05-06

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