Kenya Planters Co-operative Union Limited v Githara Chuchu & 473 other Members of Gititu Coffee Growers Co-operative Society Limited & another [2019] KECA 361 (KLR)
The bottom line
#Kenya's Court of Appeal struck down a Kshs. 13.2 million High Court payment order because the same dispute was already before a co-operative arbitration tribunal.
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 High Court had jurisdiction to entertain the 1st respondent's notice of motion dated 3rd August 2004 when the issues in controversy were pending before an arbitral panel under the Co-operative Societies Act
- 2.Whether the orders of 17th February 2006 and 12th July 2006 directing payment of Kshs. 13,251,549.95 to the 1st respondent should stand
Key legal issues
#Want of jurisdiction in the High Court by reason of pending arbitration
The trial court had no jurisdiction to entertain the application because the issues in controversy were pending before an arbitral panel; both the proceedings and the impugned orders were a nullity
The court traced the record and found sustained referrals of the dispute to the Commissioner for Co-operatives for arbitration by Aluoch, J, Olekeiwua, J and O'kubasu, J, and directions by consent. The 1st respondent had submitted to the arbitral process. The appeal against Mitei, J's ruling declining jurisdiction was withdrawn by consent, sanctifying those orders. Jurisdiction could not be assumed until wrestled back from the arbitral process.
Effect of withdrawal of appeal against the ruling declining jurisdiction
The consensual withdrawal of Appeal No. 124 of 2001 sanctified Mitei, J's orders crystallising that the court had no jurisdiction while the matter was pending before the arbitral panel
The 1st respondent had appealed against Mitei, J's ruling upholding the Commissioner's preliminary objection but withdrew the appeal by consent. It matters not that the preliminary objection was raised by a non-party; that could only have been interrogated on the appeal, which was abandoned. The respondent was therefore deemed to have abandoned the right to complain.
First appellate court's mandate on re-appraisal of evidence
As a first appeal, the Court is obliged to reconsider and assess the evidence and reach its own conclusions, and is not bound by the trial judge's findings of fact
Relying on Mwangi v Wambugu [1984] eKLR 453 and Musera v Mwechelesi & another [2007] 2 KLR, the Court restated that although an appellate court is reluctant to interfere with findings of fact by a trial judge who heard and observed the witnesses, it is obligated to reconsider and assess the evidence and need not accept findings based on no evidence or wrong principles.
Legal principles established
#- A court must down tools the moment it forms the opinion that it lacks jurisdiction; proceedings and orders made without jurisdiction are a nullity
- Where a dispute is properly pending before an arbitral process under section 80 of the Co-operative Societies Act, the High Court has no jurisdiction to entertain the same issues until jurisdiction is restored to it
- The withdrawal of an appeal against a ruling crystallises that ruling and a party is deemed to have abandoned the right to complain of it
Court orders
#- 1.Appeal allowed
- 2.The impugned orders and proceedings of 17th February 2006 and 12th July 2006 declared a nullity
- 3.Costs of the appeal and the High Court proceedings to abide the result of the arbitration
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HC Civil Case No. 3619 of 1983
- Jurisdiction invoked
- First appeal under Rule 29(1) of the Court of Appeal Rules; the judgment was signed under Rule 32(9) of the Court of Appeal Rules following the retirement of Azangalala, JA
Relief refused
#Payment of Kshs. 13,251,549.95 plus interest to the 1st respondent as ordered by the High Court
The trial court lacked jurisdiction while the dispute was pending before the arbitral panel, rendering the orders a nullity
Costs
Costs of the appeal and the High Court in the proceedings giving rise to this appeal shall abide the result of the arbitration
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. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
Both the proceedings and the impugned orders of 17th February, 2006 and 12th July, 2006 were a nullity and of no consequence.
The upshot of the totality of the above assessment and reasoning is that the appeal has merit. It is accordingly allowed. Considering the nature of the issues in controversy herein, we direct that costs of the appeal and the High Court in the proceedings giving rise to this appeal shall abide the result of the arbitration.
Issues in the judgment
#The record refers inconsistently to Okubasu, J's rulings, variously dated 31st January, 1985, 31st July, 1985 and 31st July, 1987, and describes counsel's concessions citing a 'Ruling of O'kubasu, J of 31st July, 1985' where earlier passages attribute the striking out of defences to 31st January, 1985
The coram lists Azangalala JA but the judgment certifies it was signed under Rule 32(9) because he retired; no signature block appears for him
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Planters Co-operative Union Limited v Githara Chuchu & 473 other Members of Gititu Coffee Growers Co-operative Society Limited & another [2019] KECA 361 (KLR)", Case Analysis (2019). Civil Appeal No. 269 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/361/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.