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ELCDismissedNot stated in judgment· [2017] KEELC 1407 (KLR)

Luis Muthini Kitonyi (suing as personal representatives of John Kitonyi Muthini (Deceased) v Konza Ranching & Cooperative Society Ltd [2017] KEELC 1407 (KLR)

Environment and Land Court
5 October 2017
COChristine Ochieng
1,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled it—not the Cooperative Tribunal—hears land title claims by buyers who aren't Sacco members.

What this practically means

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Executive summary

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The Defendant, a cooperative society, filed a preliminary objection dated 12th May 2017 arguing that the Plaintiff's suit was fatally defective, that Section 76 of the Cooperative Societies Act Cap 490 required the dispute to be referred to the Cooperative Tribunal, that the Court lacked jurisdiction, and that the suit and an application dated 6th August 2016 were an abuse of process. The Court identified the main issue as its own jurisdiction. It noted that the claim concerned ownership of land initially allocated to a deceased member of the Defendant Sacco; the deceased plaintiff had purchased the land from a Sacco member but the Sacco failed to register him as proprietor, registering its late member instead, and his legal representative now sought specific performance so the land would form part of his estate. Relying on Section 13 of the Environment and Land Court Act and Article 162(2)(b) of the Constitution, the Court held that it has exclusive jurisdiction over claims for title to land. Applying Republic v Gathaite Farmers Cooperative Society Ltd & Anor Exparte Richard Nganga Kamiro [2013] eKLR, it found that a non-member does not fall within the Tribunal's jurisdiction under Section 76. The Court further held that the objection amounted to reliance on technicalities, offending section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution. The preliminary objection was dismissed, the Plaint was not struck out, costs were awarded in the cause, and the parties were directed to comply with Order 11 and set the suit down for full hearing.

Key legal issues

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01

Whether the dispute falls under Section 76 of the Cooperative Societies Act and should be referred to the Cooperative Tribunal

Holding

The dispute does not fall under Section 76 because the plaintiff's deceased was not a member of the Sacco but a third-party purchaser of land from a member; the claim is for specific performance and title to land, which lies within the ELC's exclusive jurisdiction

Reasoning

Section 76 confines Tribunal referral to disputes among members, past members, persons claiming through them, and the society or its officers. The deceased purchaser was a stranger to the Sacco, so his legal representative's claim for specific performance of a land sale is not a dispute concerning the business of the society in the statutory sense. A claim for title to land is within Section 13 of the Environment and Land Court Act.

p. 1
02

Whether raising the jurisdictional objection offends the principle of justice without undue regard to procedural technicalities

Holding

The Court found that the Defendant was relying on technicalities, contrary to section 19(1) of the Environment and Land Court Act and Article 159(2)(d) of the Constitution

Reasoning

The Court invoked the statutory and constitutional commands that justice be administered expeditiously and without undue regard to procedural technicalities. Because the Plaint raised triable issues on the land claim, the objection was treated as a technicality that should not defeat substantive justice; the suit should proceed to full trial.

p. 3

Legal principles established

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  • A third party who is not a member, past member or person claiming through a member of a cooperative society does not fall within the jurisdiction of the Cooperative Tribunal under Section 76 of the Cooperative Societies Act
  • The Environment and Land Court has exclusive jurisdiction over disputes relating to title to land, which cannot be ousted even where the dispute involves a cooperative society

Court orders

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  1. 1.The Preliminary Objection dated 12th May, 2017 is dismissed
  2. 2.The Court declines to strike out the Plaint
  3. 3.Costs will be in the cause
  4. 4.Parties urged to comply with Order 11 and set the suit down for hearing

Authorities

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Legislation

  • Cooperative Societies Act Cap 490Section 76
  • Environment and Land Court ActSection 13(1), (2)(a)-(e)
  • Environment and Land Court ActSection 3
  • Environment and Land Court ActSection 19(1)
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 11

Cases cited (1)

  • Republic Vs Gathaite Farmers Cooperative Society Ltd & Anor Exparte Richard Nganga Kamiro
    [2013] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Luis Muthini Kitonyi (suing as personal representatives of John Kitonyi Muthini (Deceased) v Konza Ranching & Cooperative Society Ltd [2017] KEELC 1407 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1407/eng@2017-10-05

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