Birongo Farmers Co-operative Society Ltd v Abel Moranga Ongwacho & 4 others [2016] KEELC 40 (KLR)
The bottom line
#Kenya's Environment and Land Court, not the Co-operative Tribunal, decides disputes where co-operative society land titles are challenged as fraudulent.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute falls within Section 76 of the Co-operative Societies Act and must be referred to the Co-operative Tribunal
The preliminary objection on jurisdiction fails; the suit, which challenges the 1st defendant's title on grounds of fraud, is not a dispute concerning the business of a co-operative society within Section 76 and lies within the ELC's jurisdiction
The plaintiff's claim is predicated on allegations that the 2nd to 4th defendants fraudulently procured the transfer of the society's land to the 1st defendant, a non-member. Section 80(1) of the Land Registration Act confers on the court power to rectify the register obtained by fraud, and at the time of filing only the Environment and Land Court had jurisdiction over such matters. The case was distinguished from Nyaigwa Farmers, where the society sought sale proceeds rather than challenging title.
Whether Silver Nyangoka Ongeri lacks locus standi to institute the suit
The court found no basis to hold that he lacks locus standi, noting the County Co-operative Commissioner disowned the minutes of the meeting at which the 2nd to 4th defendants claimed election
The defendants argued that the deponent was never appointed Chairman and thus could not sue for the society. The court observed that the minutes of the 18th November 2015 meeting validating their election were disowned by the County Co-operative Commissioner, who would have validated the elections, so the objection could not stand at the interlocutory stage.
Whether findings could be made on the rival allegations of forgery and fraud
No definitive findings could be made at the interlocutory stage without viva voce evidence, though the court noted indicative pointers that fraud may have occurred
Both sides exhibited documents each accusing the other of forgery, including the Commissioner's letter disowning the 9th December 2015 letter and the minutes of 18th November 2015. Determining authenticity and whether fraud attended the sale required trial evidence; at this stage the court could only preserve the subject matter pending trial.
Legal principles established
#- Where a suit challenges title to land on grounds of fraud and misrepresentation, the Co-operative Tribunal established under the Co-operative Societies Act has no jurisdiction; revocation or rectification of title is the preserve of the Environment and Land Court
- Under Section 80(1) of the Land Registration Act, 2012, the court may order rectification of the register where a registration was obtained by fraud or mistake
- A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
Court orders
#- 1.Preliminary objections by the 1st defendant and by the 2nd to 4th defendants disallowed with no order for costs
- 2.Parties ordered to maintain the status quo with no transfer or charging of the suit property until the suit is heard and determined
- 3.The plaintiff's application for injunction dated 18th March 2016 dispensed with on those terms, with costs in the cause
- 4.Parties directed to comply with Order II of the Civil Procedure Rules to facilitate expeditious hearing of the suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Birongo Farmers Co-operative Society Ltd v Abel Moranga Ongwacho & 4 others [2016] KEELC 40 (KLR)", Case Analysis (2016). Not stated in judgment (suit instituted by plaint dated 16th March 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/40/eng@2016-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.