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ELCStruck OutEldoret Environment and Land Court Case (number not stated in excerpt; decision also applies to ELC Nos. 277 and 278 of 2016)· [2017] KEELC 489 (KLR)

Murugi Karunda & 11 others v Peter Gitau & 5 others [2017] KEELC 489 (KLR)

Environment and Land Court
14 December 2017
AOA. Ombwayo
1,156 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a land dispute because co-operative society business must first go to the Co-operative Tribunal, not the High Court-track courts.

What this practically means

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Executive summary

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The Environment and Land Court at Eldoret, per A. Ombwayo J, determined a preliminary objection raised by the 1st to 3rd defendants, supported by the 4th to 6th defendants, that the court lacked jurisdiction to hear the suit at first instance because disputes concerning the business of a co-operative society must be referred to the Co-operative Tribunal under section 76 of the Co-operative Societies Act, Cap. 490. Counsel for the defendants relied on Wakenya Pamoja S.A.C.C.O. Ltd v Stephen Ogamba (2008) eKLR, where Musinga J upheld a similar objection, and on Muthui Wa Kariuki v Tembo Co-operative Savings and Credit Society, where Havelock J held that allocation of land and processing of title deeds was the business of a co-operative society. Plaintiffs' counsel argued for application of the ejusdem generis rule, contending that section 76(2) refers only to debts. The court held that section 76(2) must be interpreted inclusively and extensively – it enlarges rather than restricts the meaning of 'dispute' – applying Nutter v Accrington Local Board and agreeing with Musinga J's interpretation in Wakenya Pamoja. Since the dispute concerned allocation and processing of title to land owned by Kamuyu Farmers' Co-operative Society, it fell squarely within section 76(1) and (2). The preliminary objection was upheld, the suit struck out with costs to the 1st, 2nd and 3rd defendants, with parties directed to maintain status quo for 30 days pending filing of a reference before the Tribunal. The decision also applied to ELC Eldoret Cases Nos. 277 and 278 of 2016.

Key legal issues

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01

Jurisdiction over disputes concerning co-operative society business

Holding

The court lacks jurisdiction at first instance; such disputes are for the Co-operative Tribunal under section 76(1) and (2)

Reasoning

The dispute concerned allocation and processing of title to land owned by Kamuyu Farmers' Co-operative Society. Since the society was the owner whether beneficially or by registration, the whole process of allocation was the business of the society, bringing the dispute within section 76(1) and (2), which mandates reference to the Tribunal.

p. 3
02

Interpretation of section 76(2) – inclusive vs exclusive

Holding

Section 76(2) enlarges rather than restricts the meaning of 'dispute'; the ejusdem generis rule does not apply

Reasoning

Following Wakenya Pamoja and Nutter v Accrington Local Board, a definition using 'include' is prima facie extensive. Counsel for the plaintiffs' ejusdem generis argument was rejected because the inclusivity rule governs; the section enlarges the meaning of a dispute to include, not exclude.

p. 3

Legal principles established

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  • Section 76(2) of the Co-operative Societies Act should be interpreted in its inclusive, extensive nature, not exclusively; the ejusdem generis rule does not apply to it
  • Any dispute relating to the allocation of land and processing of title by a co-operative society relates to the business of the society and must be referred to the Co-operative Tribunal

Court orders

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  1. 1.The preliminary objection on jurisdiction is upheld
  2. 2.The suit is struck out with costs to the 1st, 2nd and 3rd defendants
  3. 3.Parties to maintain status quo for 30 days to pre-empt any destruction of property pending filing of the reference before the Tribunal
  4. 4.The decision applies also to Eldoret Environment and Land Court Cases Nos. 277 and 278 of 2016

Authorities

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Legislation

  • Co-operative Societies Act, Cap. 490section 76(1) and (2)
  • Environment and Land Court Act

Cases cited (3)

  • Wakenya Pamoja S.A.C.C.O. Ltd Vs Stephen Ogamba
    (2008) eKLR
  • Muthui Wa Kariuki Vs Tembo Co-operative Savings and Credit Society
  • Nutter V. Accrington Local Board
    (1879) 4QB 375 pp.384, 385(CA)
Jurisdiction invoked
Section 76 of the Co-operative Societies Act, Cap. 490 (exclusive jurisdiction of the Co-operative Tribunal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Murugi Karunda & 11 others v Peter Gitau & 5 others [2017] KEELC 489 (KLR)", Case Analysis (2017). Eldoret Environment and Land Court Case (number not stated in excerpt; decision also applies to ELC Nos. 277 and 278 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/489/eng@2017-12-14

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