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ELCDismissedNot stated in judgment· [2017] KEELC 2603 (KLR)

Redempter Syombua Musyoki & another v Ngii Ndambuki & another [2017] KEELC 2603 (KLR)

Environment and Land Court
30 June 2017
OAO.A. ANGOTE
654 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by O.A. Angote J of the Environment and Land Court at Machakos determined a Notice of Preliminary Objection dated 27th November 2012 in a land dispute. The Plaintiffs, legal representatives of the estate of the late Joseph Musyoki King'oo, sought a declaration that he was a bona fide purchaser for value of plot number 9-045, a declaration that the 1st Defendant's transfer of the land to the 2nd Defendant was null and void, and a permanent injunction. They alleged the 1st Defendant was the registered proprietor and that, instead of transferring the land to their late father, he transferred it to the 2nd Defendant. The Defendants objected that the court lacked jurisdiction, contending the proper forum was the Co-operative Tribunal under Section 76 of the Co-operative Societies Act and the Chief Justice's directions of 20th September 2012, because the suit land was registered under share number 692 of Muka Mukuu Farmers Co-operative Society and some parties were members of that society. The Plaintiffs countered that the pleadings did not show membership of the society or that the dispute concerned the society's business, that not every dispute involving a co-operative society goes to the Tribunal, and that the court had unlimited jurisdiction over land. The court held that Section 76(1) applies only to disputes concerning the business of a co-operative society; the pleadings did not show the late King'oo was a member or purchased in that capacity, and the society was not a party. The preliminary objection was dismissed with costs.

Key legal issues

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01

Whether the suit is barred for want of jurisdiction under Section 76(1) of the Co-operative Societies Act

Holding

The preliminary objection fails because the pleadings do not establish that the dispute concerns the business of a co-operative society, and the society itself is not a party to the suit.

Reasoning

Section 76(1) refers only disputes concerning the business of a co-operative society to the Tribunal, arising between members, past members, persons claiming through them, or between the society and others. The Plaint does not show that the plaintiffs' late father was a member of Muka Mukuu Farmers Co-operative Society or that he purchased the suit land in that capacity, nor that the transactions were the society's business. The society is not a party. The ELC's unlimited jurisdiction over land therefore remains engaged.

p. 2

Legal principles established

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  • Not every dispute involving a co-operative society or its members falls within the jurisdiction of the Co-operative Tribunal; the dispute must concern the business of a co-operative society as defined by Section 76(1).
  • Where the society is not a party and the pleadings do not show that the dispute concerns the society's business, the matter is not referable to the Co-operative Tribunal.

Court orders

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  1. 1.Dismissal with costs of the Defendants' Notice of Preliminary Objection dated 27th November, 2012
Jurisdiction invoked
Unlimited original jurisdiction of the Environment and Land Court over land matters; challenge raised under Section 76 of the Co-operative Societies 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, "Redempter Syombua Musyoki & another v Ngii Ndambuki & another [2017] KEELC 2603 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2603/eng@2017-06-30

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