Mek Sacco Limited v County Co-operative Officer- Kisumu & 3 others [2019] KECA 818 (KLR)
The bottom line
#The Court of Appeal dismissed Mek Sacco's appeal, confirming that parties cannot challenge a court's jurisdiction on appeal after willingly litigating before it.
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 hear and determine the application dated 5th February, 2016
- 2.Whether High Court Misc. Civil Application No. 11 (JR) of 2015 is res judicata and whether the doctrine of sub-judice applies
- 3.Whether the appellant was denied the right to be heard
Key legal issues
#Whether the High Court had jurisdiction to enjoin the 4th respondents and vacate the consent order
The High Court had exclusive jurisdiction over the judicial review application and the appellant, having filed the suit without raising a jurisdictional objection, was estopped from challenging jurisdiction on appeal.
The court applied the settled principle that a court's jurisdiction flows from the Constitution or statute. It noted that section 76 of the Co-operative Societies Act did not oust the High Court's jurisdiction over the judicial review application, which was distinct from disputes referable to the Co-operative Tribunal. Since the appellant instituted the High Court proceedings and never objected to jurisdiction below, it was estopped from doing so on appeal.
Whether the judicial review application was res judicata or sub judice by reference to the Co-operative Tribunal case and HCCC No. 29 of 2015
Neither doctrine applied: the issues in the judicial review application differed from those in the Tribunal case, and HCCC No. 29 of 2015 had been dismissed for want of jurisdiction.
The court compared the relief sought in Co-operative Tribunal Case No. 587 of 2015 (interim injunctions regarding interference with the Sacco's operations) with that sought in the judicial review application (certiorari and prohibition concerning the inquiry). Finding the issues different, res judicata failed. Sub judice likewise failed because HCCC No. 29 of 2015 had been dismissed by Maina, J for want of jurisdiction, so no pending suit with identical issues existed.
Whether the appellant was denied its right to a fair hearing
The appellant was given the opportunity to be heard but did not take advantage of it, as counsel holding brief had no clear instructions.
The court reiterated that audi alteram partem and nemo judex in causa sua are sacrosanct principles of natural justice, protected under Article 25(c) of the Constitution. However, the record showed that counsel holding brief for the appellant was present at the hearing before Chemitei, J but stated he had no clear instructions. The appellant was therefore afforded its right to be heard, and the failure to proceed was of its own making.
Legal principles established
#- A party who files and litigates a suit in a court without objecting to that court's jurisdiction is estopped from challenging that jurisdiction on appeal
- Res judicata requires all its elements to be satisfied conjunctively; where the issues in the two suits are different, the bar does not apply
- The sub judice doctrine does not apply where the previously instituted suit was dismissed for want of jurisdiction
Court orders
#- 1.The appeal was dismissed
- 2.Costs awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Kisumu
- HC Misc. Civil Application (JR) No. 11 of 2015
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Act / appellate jurisdiction (not expressly stated in the judgment)
Relief refused
#Allowing the appeal and quashing/setting aside the High Court decision of 20th April 2016
The court found no merit in the appeal on all three issues: jurisdiction was not challenged below (estoppel), res judicata and sub judice did not apply, and the appellant was not denied the right to be heard
Costs
The appeal was dismissed with 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.
It is clear that the High Court and not the Co-operative Disputes Tribunal had the exclusive jurisdiction to determine the judicial review application.
The appellants are therefore estopped from challenging the jurisdiction of the High Court at this stage.
Accordingly, the issues raised in Co-operative Dispute Tribunal Case No. 587 of 2015 and in the High Court Misc. Civil Application (JR) No. 11 of 2015 were different and High Court Misc. Civil application (JR) No. 11 of 2015 is therefore not res judicata.
Accordingly, we find that the appellant was given the right to be heard, but did not take advantage of it.
For the foregoing reasons, we find no merit in the appeal and dismiss it with costs to the respondents.
Issues in the judgment
#The judgment inconsistently dates the impugned decision of the 1st and 2nd respondents, stating 14th September 2015 in the notice of motion and in paragraph [24] stating 14th April 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mek Sacco Limited v County Co-operative Officer- Kisumu & 3 others [2019] KECA 818 (KLR)", Case Analysis (2019). Civil Appeal No. 47 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/818/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.