Nicholas Ochoki & 6 others (Members of the Kisii Farmers Co-operative Society and appointed representative of the 25 Societies) v Kisii Farmers Co-operative Union Ltd [2016] KEELC 361 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out farmers' injunction application because no underlying suit existed and the Co-operative Tribunal should first hear the dispute.
What this practically means
#Executive summary
#Key legal issues
#Whether the injunction application could proceed without an underlying suit
The Notice of Motion was misconceived and incompetent because there was no suit within which the application could be considered; a temporary injunction preserves the subject matter of a pending suit.
Order 40 Rule 1 presupposes a suit in which property is in danger of being wasted, damaged or alienated. The applicants commenced the matter by Notice of Motion without filing a plaint, originating summons, judicial review application or petition. The essence of a temporary injunction is to preserve the subject matter of a suit until final determination; with no pending suit, the application hangs in a vacuum and cannot stand.
Whether the court or the Co-operative Societies Tribunal has jurisdiction over the dispute
The Tribunal is vested with jurisdiction over the dispute and the court cannot stand in its way; the applicants must first exhaust the Tribunal mechanism.
The applicants sought injunctions pending the determination of Tribunal Suit No. 61 of 2009. The court held the Tribunal is vested with jurisdiction to determine competent matters before it, and the applicants had to exhaust that dispute resolution mechanism before invoking the court's jurisdiction. The respondent's objection on jurisdiction therefore found favour with the court.
Whether the petition filed after the Notice of Motion could cure the defect
The petition could not be filed after the Notice of Motion; the roles could not be reversed, and the petition was equally incompetent.
The applicants purported to file a petition dated 4th April 2016 within the matter commenced by a Notice of Motion dated 6th July 2015. The court held the Notice of Motion ought to have been predicated on the petition, not the reverse. The discrepancy in the respondent's name (Gusii Farmers Co-operative Union Ltd versus Kisii Farmers Co-operative Union Limited) also raised doubt as to the proper respondent.
Legal principles established
#- An application for a temporary injunction under Order 40 must be made within a pending suit and cannot be made in abstract or in a vacuum
- A party must first exhaust the dispute resolution mechanism provided under the Co-operative Societies Tribunal before invoking the High/ELC court's jurisdiction
Court orders
#- 1.Struck out the Notice of Motion dated 6th July 2015
- 2.Struck out the petition dated 4th April 2016 filed on 18th April 2016
- 3.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Articles 40 and 159 of the Constitution and Sections 3 and 3A of the Civil Procedure Act; Orders 40, 50, 51 and Order 1 Rule 8 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Ochoki & 6 others (Members of the Kisii Farmers Co-operative Society and appointed representative of the 25 Societies) v Kisii Farmers Co-operative Union Ltd [2016] KEELC 361 (KLR)", Case Analysis (2016). ELC No. 337 of 2015 (Kisii). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/361/eng@2016-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.