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ELCDismissedELC No. 587 of 2010 (as referenced in the coram listing)· [2016] KEELC 789 (KLR)

Kennedy Kimani Ndarwa v Methi & Swani Farmers Cooperative Society Limited & another [2016] KEELC 789 (KLR)

Environment and Land Court
9 June 2016
LWL N Waithaka
2,225 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed it—not the Cooperative Tribunal—decides land ownership disputes involving cooperative societies.

What this practically means

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Executive summary

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The plaintiff, Kennedy Kimani Ndarwa, sued Methi & Swani Farmers Cooperative Society Limited and Peter Irungu Kamau, claiming he bought shares in the 1st defendant through a member, was allotted the parcel Mitubiri/Wempa/14, took possession, but discovered the 1st defendant had transferred the property to the 2nd defendant. He sought cancellation of the entries and of the 2nd defendant's registration, a declaration of ownership and issuance of a title deed to him, plus costs. The 1st defendant denied the plaintiff's membership and any arrangement putting him in possession, and filed a notice of preliminary objection dated 19th June 2015 contending that the court lacked jurisdiction because disputes between cooperative societies and their members are triable by the Cooperative Tribunal under the Cooperative Societies Act, Cap 490, and that the suit was an abuse of process. The objection was disposed of by written submissions. The 1st defendant relied on authorities holding such disputes belong to the Tribunal; the plaintiff relied on Article 162(2)(b) of the Constitution, Section 13(2) of the Environment and Land Court Act, and authorities holding that the Tribunal cannot determine land ownership or cancel title. Reviewing the divided High Court authority, Waithaka J was persuaded by Maraga J's reasoning that resolving land disputes is not part of the 'business' of a cooperative society under Section 76 of Cap 490, and that the power to cancel title to land under Section 80 of the Land Registration Act is donated exclusively to the Environment and Land Court. The notice of preliminary objection was dismissed with costs to the plaintiff/respondent. The main suit was to proceed.

Key legal issues

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01

Jurisdiction of the Cooperative Tribunal over land disputes involving cooperative societies and their members

Holding

The Cooperative Tribunal has no jurisdiction to determine land ownership disputes or disputes concerning cancellation of title; such disputes fall within the jurisdiction of the Environment and Land Court

Reasoning

The court noted a division of High Court opinion on whether Section 76 of Cap 490 covers land disputes. It was persuaded by Maraga J's reasoning that resolving land disputes cannot be part of a cooperative society's 'business', and that cancellation of title is a power reserved to the Environment and Land Court under Section 80 of the Land Registration Act read with Section 2 of that Act, which defines 'Court' as the Environment and Land Court.

p. 4
02

Merit of the 1st defendant's notice of preliminary objection

Holding

The preliminary objection lacked merit and was dismissed with costs to the plaintiff

Reasoning

Since the court found it lacked jurisdiction to oust the ELC, the objection failed. The suit was properly before the Environment and Land Court, whose jurisdiction under Article 162(2)(b) and Section 13(2) of the ELC Act extends to cancellation of title to land.

p. 5

Legal principles established

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  • Settlement of land disputes is not one of the businesses of a cooperative society contemplated under Section 76 of the Cooperative Societies Act, and the power to cancel title to land is donated to the Environment and Land Court under Section 80 of the Land Registration Act

Court orders

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  1. 1.The notice of preliminary objection dated 19th June 2015 is dismissed
  2. 2.Costs of the preliminary objection awarded to the plaintiff/respondent
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and Section 13(2) of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Kimani Ndarwa v Methi & Swani Farmers Cooperative Society Limited & another [2016] KEELC 789 (KLR)", Case Analysis (2016). ELC No. 587 of 2010 (as referenced in the coram listing). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/789/eng@2016-06-09

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