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Court of AppealPartially AllowedCivil Appeal No. 300 of 201

Samuru Gituto Farmers Co-operative Society Limited v Chief Magistrate's Court at Thika & 15 others [2019] KECA 786 (KLR)

Court of Appeal
22 March 2019
10,255 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~41 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal nullified court orders that gave away a co-operative's land without hearing the rightful owners, protecting the society pending full hearings.

What this practically means

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Executive summary

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This appeal arose from the leadership saga of Samuru Gituto Farmers Co-operative Society Limited, whose 301 acres in Thika were targeted for alienation by a rival group (the Mwenje group and an 'executive trio') that obtained ex parte orders from magistrates in CMCC 792/06 despite not being parties to the suit, relying on a letter from the District Cooperative Officer that the DCO himself disowned as a forgery. Wendoh J had dismissed the Society's constitutional application seeking to nullify the Kariuki and Wachira orders, holding that supervisory jurisdiction under section 65(2) of the retired Constitution applied only to public bodies, that the proper forum was the Cooperative Tribunal under sections 76 and 77 of the Cooperative Societies Act, and that the multiplicity of suits amounted to abuse of court process. The Court of Appeal, in a retrial-mode re-evaluation under rule 29(1)(a), allowed the appeal in part. It held that the supervisory jurisdiction was properly invoked because the subordinate court issued contradictory ex parte orders to strangers, overriding an interlocutory judgment, without notice and beyond 14 days, in breach of natural justice; that there was no abuse of process since the various suits involved different parties and purposes; and that the alleged leadership dispute was a red herring, with the CCD confirming the Hiram group as the bona fide registered officials. The Kariuki and Wachira orders were declared nullities and set aside. Prayers to quash land transfers were refused because pending suits address those issues, with Nyamu J's conservatory orders continuing in force and to be registered against the titles. The appellant received half the costs of the appeal and the court below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Constitutional Application was properly filed before the High Court or, put another way, whether the supervisory jurisdiction of the High Court was properly invoked
  2. 2.Whether the Constitutional application was filed in abuse of court process
  3. 3.Whether section 76 of the Cooperative Societies Act was applicable
  4. 4.What orders should be made in the appeal

Key legal issues

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01

Whether the supervisory jurisdiction of the High Court was properly invoked

Holding

Yes. The subordinate court issued contradictory ex parte orders to strangers to the suit, overriding an interlocutory judgment and injunction, without notice and beyond 14 days, in breach of natural justice, justifying supervisory intervention.

Reasoning

The Court traced the supervisory power from section 65(2) of the retired Constitution to Article 165(6) and (7) of the 2010 Constitution, describing it as a jurisdiction to examine the propriety, legality, regularity, justness or correctness of proceedings, well beyond appellate jurisdiction. The magistrates failed to observe natural justice, allowed non-parties to obtain orders, and declined to revisit their own orders. Breach of the right to be heard, the most serious complaint and uncontested, squarely grounded the supervisory jurisdiction.

p. 9
02

Whether the constitutional application was filed in abuse of court process

Holding

No. The trial court made no analysis of the multiple suits; each had different parties and purposes, and HCCA 696/08 was filed by the CCD, not the Hiram group.

Reasoning

The Court re-evaluated the suits identified by the trial court as constituting abuse: JR 20/2007 was against the DCO only; HCCA 696/2008 was the CCD's appeal, wrongly ascribed to the Hiram group; JR 815/2008 was disclosed and stayed by the judge herself; and the constitutional application invoked a special jurisdiction. The Attorney General v Baker formulation requires the same subject matter and harassment by the same parties, conditions not met on the record.

p. 9
03

Whether section 76 of the Cooperative Societies Act applied so as to oust the High Court's jurisdiction in favour of the Cooperative Tribunal

Holding

No. The alleged leadership dispute was a red herring; the Hiram group were the prima facie registered officials, and the CCD being a party to the suit, the matter was not a dispute within section 76 cognisable by the Tribunal.

Reasoning

The CCD verified by sworn affidavits and an official search that the Hiram group were the duly registered officials; the Mwenje group's claim rested on a letter the DCO disowned as a forgery and which was the subject of criminal proceedings. Since the CCD was a party, the matter was not purely a members' dispute under section 76. It was the Mwenje group, if aggrieved, who ought to have referred a dispute to the Tribunal; instead they imposed themselves through patently abusive court process.

p. 10
04

What orders should be made in the appeal

Holding

Appeal allowed in part: the Kariuki and Wachira orders were declared nullities and set aside; prayers for quashing land transfers were declined in view of pending suits; Nyamu J's conservatory orders continue and are to be registered against the titles.

Reasoning

Supervisory orders could issue against the subordinate court, nullifying the impugned orders and allowing CMCC 792/06 to proceed according to law. However, the constitutional application could not support the land-related prayers because other pending suits were addressing the alienation, and definitive orders would prejudice those courts. Interim protection of the land was preserved through the continued operation of the amended conservatory orders, and the appellant received half the costs.

p. 10

Legal principles established

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  • A decision affecting legal rights arrived at by a procedure offending natural justice is outside the jurisdiction of the decision-making authority, and the High Court's supervisory jurisdiction over subordinate courts is properly invoked where the subordinate court breaches the rules of natural justice.
  • The High Court's supervisory jurisdiction extends beyond public law remedies against public bodies and may be directed at correcting proceedings of subordinate courts that are illegal, irregular or contrary to natural justice, even where private individuals are involved.
  • A finding of abuse of process by multiplicity of suits requires analysis of whether the suits are by the same party, against the same party, on the same subject matter and calculated to harass; suits by different parties for different remedies do not amount to abuse.
  • Ex parte orders granted to persons who are not parties to the suit and who have not sought to be enjoined, without notice and lasting beyond 14 days, are a nullity.

Court orders

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  1. 1.The orders made by P. K. Kariuki, RM on 20th and 29th August, 2008, and the orders made by L. W. Wachira, SRM, on 9th December, 2008 in CMCC 792/06 are declared a nullity and set aside; the proceedings in that case shall proceed in the manner and procedure prescribed by law
  2. 2.Prayers (ii) and (iii) in the memorandum of appeal are not granted; the pending suits relating to Land Parcel No. 10743 shall proceed to hearing and determination in accordance with the law
  3. 3.Pending the hearing and determination of CMCC 792/06 and all pending suits relating to the land, the preservatory and conservatory orders issued by Nyamu, J. on 19th January 2009, as amended by the Court, remain in force and shall be registered against the Title(s) forthwith
  4. 4.The appellant shall have half the costs of this appeal and of the court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H. C. Constitutional Appl. No. 30 of 2009
Jurisdiction invoked
Second appellate jurisdiction over an appeal from the High Court exercising supervisory jurisdiction under section 65(2) of the retired Constitution

Relief refused

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Prayer for quashing of the transfers and alterations made by the Mwenje group in LR No. 10743

Pending suits are addressing the alienation of the Society's land; definitive orders would prejudice the courts handling those matters

p. 10

Prayer to stop any dealings or further dealing with the land without approval by the Commissioner for Cooperative Development

Same as above; left to pending suits, with conservatory orders continuing in the interim

p. 10

Costs

The appellant shall have half the costs of this appeal and of the court below.

Quotable passages

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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 Orders made by P. K. Kariuki, Esq. RM on 20th and 29th August, 2008, and the orders made by Mrs. L. W. Wachira, SRM, on 9th December, 2008 in CMCC 792/06, are declared a nullity and are hereby set aside. The proceedings in that case shall proceed in the manner and procedure prescribed by law.
p. 10Final orders - nullification of subordinate court orders
The appellant shall have half the costs of this appeal and of the court below.
p. 11Final orders - costs
It has long been settled law that a decision affecting legal rights of an individual which is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision making authority.
p. 8Natural justice and supervisory jurisdiction
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
p. 9Right to be heard
the alleged leadership dispute is a red herring, tailored at masking the scramble for the fraudulent alienation of the Society's land.
p. 10Cooperative Societies Act, section 76
Pending the hearing and determination of CMCC 792/06, and all pending suits relating to the land, the following orders issued by Nyamu, J. on 19th January 2009, as amended by this Court, shall remain in force and shall be registered against the Title(s) forthwith
p. 10Final orders - continuance of conservatory orders

Issues in the judgment

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minor

The appeal number as printed is incomplete: 'CIVIL APPEAL NO. 300 OF 201' lacks a final digit (presumably 2012 or similar).

minor

The judgment refers inconsistently to the JR application as 'JR 20/2017' in the narrative and as 'JR 20/2007' when analysing abuse of process; the 2007 date is consistent with surrounding facts.

minor

The High Court appeal by the CCD is referred to variously as 'HCCA No. 618 of 2008' and 'HCCA 696/08' in the same judgment.

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, "Samuru Gituto Farmers Co-operative Society Limited v Chief Magistrate's Court at Thika & 15 others [2019] KECA 786 (KLR)", Case Analysis (2019). Civil Appeal No. 300 of 201. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/786/eng@2019-03-22

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