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ELCDismissedKitale ELC (suit number not stated in judgment)· [2018] KEELC 637 (KLR)

Michael Nyongesa v Steven Odero [2018] KEELC 637 (KLR)

Environment and Land Court
29 November 2018
1,757 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court dismissed a buyer's bid to evict an occupant before trial, confirming that co-op member land disputes belong in the Environment and Land Court.

What this practically means

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Executive summary

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The plaintiff filed a notice of application dated 31 August 2018 in a land dispute over parcel Kolongolo/Kolongolo Block 4/Kolongolo 'A'/803 (0.04 Ha) in Kwanza Sub-County, Trans-Nzoia. He sought a declaration that he is the absolute and rightful owner of the parcel, injunctions restraining the defendant from obstructing his access, occupation and use of the land and from continuing in occupation, an order restraining interference pending the main suit, a permanent injunction, police oversight of implementation, and costs. He relied on a title issued on 5 July 2017 following purchases from Johnson Ngereso and Kolongolo Farmers' Co-operative Society. The defendant opposed, asserting membership of the society, occupation of the land since 2004 after purchase from John Linyulu, development of the land, wrongful registration of the plaintiff, want of jurisdiction and non-service. The court first dealt with jurisdiction, holding that the defendant had not established a dispute within the meaning of Section 76 of the Co-operative Societies Act (Cap 490) and, the matter involving land, following its decision in Dismas Namiti, that the ELC has jurisdiction. On the merits, the court observed that the prayers sought drastic, effectively mandatory and eviction-type relief at interlocutory stage against a defendant admittedly in possession, contrary to the rule in Beatrice Ngina Mwai and Shariff Abdi Hassan that mandatory injunctions are not granted interlocutorily absent special circumstances and a high sense of assurance. The application was dismissed with costs.

Key legal issues

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01

Jurisdiction - whether the dispute between two members of a co-operative society must go to the Co-operative Tribunal under Section 76 of Cap 490

Holding

The court found the defendant had not demonstrated a dispute within the meaning of the Act and, the matter involving land, the ELC has jurisdiction.

Reasoning

The court examined Section 76(1) of the Co-operative Societies Act which requires disputes concerning the business of a co-operative society among members or between members and the society to be referred to the Tribunal. Applying its earlier decision in Dismas Namiti -v- Basale Farmers' Co-operative Society, it found that the defendant had not shown a dispute within the Section 2 definition and, as the matter involves land, the court has jurisdiction.

p. 2
02

Whether the plaintiff was entitled to the interlocutory injunctive and declaratory orders sought

Holding

The application was dismissed as lacking merit; the prayers sought mandatory/eviction-type relief at interlocutory stage.

Reasoning

The court observed that granting prayer 2 would determine the rights of the parties reserved for trial, and prayers 3, 4 and 5 sought injunctive orders against a defendant admittedly in possession. Citing Beatrice Ngina Mwai and Shariff Abdi Hassan, it held mandatory injunctions at interlocutory stage require special circumstances and a high sense of assurance, which was absent.

p. 3

Legal principles established

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  • A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and only in clear cases, applying a higher standard than for a prohibitory injunction.
  • A court must first satisfy itself of its own jurisdiction before determining an application, even where the objection is raised only in submissions.
  • Not every dispute involving members of a co-operative society falls within Section 76 of the Co-operative Societies Act; a land dispute over title may remain within the ELC's jurisdiction.

Court orders

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  1. 1.The plaintiff's application dated 31/8/2018 is dismissed
  2. 2.Costs of the application to the defendant
Jurisdiction invoked
Article 162(2) Constitution (ELC jurisdiction); dispute over title to land - court found jurisdiction notwithstanding Section 76 of the Co-operative Societies Act (Cap 490)

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, "Michael Nyongesa v Steven Odero [2018] KEELC 637 (KLR)", Case Analysis (2018). Kitale ELC (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/637/eng@2018-11-29

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