James Kiptoo Chemjor v Simion Kiprotich [2015] KEELC 15 (KLR)
The bottom line
#An Eldoret court confirmed it can hear land disputes involving co-operative society shares, and the buyer with a clear, witnessed sale agreement and society records won a permanent injunction.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the Environment and Land Court over a dispute involving shares of a co-operative society
The court has jurisdiction; nothing in the Co-operative Societies Act ousts it, and the burden of proving exclusion of jurisdiction was not discharged.
Article 162(2)(b) of the Constitution and the Environment and Land Court Act confer jurisdiction over disputes relating to the use and occupation of, and title to, land. The dispute concerns title and occupation of land parcel Soy/Soy Block 10(Navillus)/2975, claimed by both parties as purchasers from shareholders of a co-operative society. The court found a strong presumption in favour of civil court jurisdiction, and that the Co-operative Societies Act contains no bar to entertaining the dispute.
Whether the plaintiff proved the land belonged to Chepkonga Kigen
Yes, on a balance of probabilities; the society's officials corroborated that the parcel was allocated to Chepkonga Kigen who sold it to the plaintiff.
The secretary and committee members of Ngobitwa Farmers Co-operative Society confirmed that parcel 2975 was allocated to Chepkonga Kigen, who leased it to the plaintiff from 2000 and sold it to him in 2013. The agreement dated 30.12.2013 for plot 189 at Kshs.200,000 was witnessed by the chief. Receipts in the name of Chemweno Kigen were explained as shares bought on behalf of his brother Chepkonga Kigen, with no dispute between them.
Whether the defendant proved a valid sale agreement with Elias K. Kaino
No; the agreement was for transfer of shares, undated as to clarity and amount, and did not disclose the land purchased.
The defendant's agreement with Elias Kiptoo Kaino did not indicate clearly when it was signed or how much was paid; it concerned surrender of shares rather than land, and the receipts did not identify any parcel number. The defendant failed to call an official of the society to confirm from its records who owned parcel 2975, while the society's officials who testified supported the plaintiff's case.
Non-joinder of Ngobitwa Farmers Co-operative Society Ltd
Non-joinder was not fatal because the society's officials testified and it had effectively supported the plaintiff's claim.
The court found there was no need to enjoin the society since its officials testified and its records/decision supported the plaintiff. Order 1 rules 9 and 10 of the Civil Procedure Rules 2010 provide that no suit shall be defeated by reason of misjoinder or non-joinder of parties.
Legal principles established
#- There is a strong presumption that civil courts have jurisdiction to decide all disputes of a civil nature, and exclusion of such jurisdiction must be explicitly expressed or clearly implied, with the burden on the party alleging exclusion.
- Misjoinder or non-joinder of a party does not in itself render a suit fatally defective.
Court orders
#- 1.A permanent injunction restraining the defendant from trespassing upon and committing trespass activities such as illegal fencing and other development activities in respect of the plaintiff's parcel No. Soy/Soy Block 10(Navillus) 2975
- 2.Costs of the suit plus interest awarded to the plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kiptoo Chemjor v Simion Kiprotich [2015] KEELC 15 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/15/eng@2015-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.