Dismas Namiti v Basale Farmers Cooperative Society & another [2018] KEELC 3606 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it—not the Co-operative Tribunal—decides disputes over land titles and fraud, even after a Tribunal ruling.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit is res judicata under Section 7 of the Civil Procedure Act given the prior Nairobi Co-operative Tribunal Case No. 7 of 2005
The first limb of the Preliminary Objection fails because the issues in the present suit are totally different from those before the Tribunal; the Tribunal determined expulsion and eviction, whereas this suit concerns fraud in obtaining titles issued after the Tribunal's decision.
The court compared the issues before the Tribunal (whether the plaintiff had been expelled and deserved eviction) with the issues in the plaint (fraudulent registration, omission of the plaintiff's name from the area list, cancellation of titles and rectification of the register). No titles had been issued when the Tribunal decided, so the fraud claim could not have been litigated then. The Tribunal judgment merely forms a background against which the fraud claim is assessed.
Whether jurisdiction lies with the Co-operative Tribunal under Section 76 of the Co-operative Societies Act rather than the ELC
This court, established under Article 162(2)(b) of the Constitution and empowered by Section 13(2) of the Environment and Land Court Act, is the appropriate forum for a dispute concerning title to land and fraud in acquisition of title; the ELC's jurisdiction supersedes that of the Co-operative Tribunal in such matters.
The court held that the plaintiff's grievance is not about mere membership of the society but about a parcel of land he occupies, from which he is threatened with eviction, and regarding which fraud is alleged in the manner the defendants acquired title. The dispute therefore relates to real property within Section 13(2) of the ELC Act. The Tribunal's powers may not extend to cancellation of title.
Legal principles established
#- The ELC has jurisdiction over disputes relating to title to land even where a Co-operative Tribunal previously determined a membership/eviction dispute, since the plaintiff's grievance concerns a parcel of land and fraud in acquisition of title, not mere membership.
- Res judicata does not bar a subsequent suit where the issues now raised (fraud in obtaining titles) are different from those determined in the former suit and did not exist at the time of the earlier adjudication.
Court orders
#- 1.Preliminary Objection dated 22/1/2017 dismissed wholly with costs to the plaintiff
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13(2) of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dismas Namiti v Basale Farmers Cooperative Society & another [2018] KEELC 3606 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3606/eng@2018-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.