Michael Nyongesa v Steven Odero [2018] KEELC 637 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Whether the plaintiff was entitled to the interlocutory injunctive and declaratory orders sought
The application was dismissed as lacking merit; the prayers sought mandatory/eviction-type relief at interlocutory stage.
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.
Legal principles established
#- 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
#- 1.The plaintiff's application dated 31/8/2018 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.