Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck Out· [2019] KEELC 950 (KLR)

Rashid Kogi Muturi(Suing on his behalf and on behalf of members of Thika Muslim Housing Co-operative Society Limited claiming interest over L.R No.10821/531) v Screen Check Limited, Hassan A.A. Zubeidi, Joseph D.B.K Kimani t/aPyramid Auctioneer & Thika Land Registrar (Environment & Land Case 300 of 2018) [2019] KEELC 950 (KLR)

Environment and Land Court
1 November 2019
4,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a member's land suit because a registered co-operative, not its members, owns its property and must sue in its own name.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Thika (L. Gacheru J) determined three applications arising from a suit over L.R No. 10821/53 Thika Municipality. The Plaintiff, sued on his own behalf and on behalf of members of Thika Muslim Housing Cooperative Society Limited, sought temporary injunction and conservatory orders restraining the 1st Defendant from subdividing, transferring or encumbering the property, which had been sold by public auction in execution of a decree in Nairobi HCCC No. 493 of 2004 and transferred to the 1st Defendant on 20th June 2016. The Plaintiff claimed the Society held the land in trust for its paid-up members, who had an overriding interest under Section 28 of the Land Registration Act and a beneficial interest under a constructive and resulting trust under Section 42 of the Co-operative Societies Act. The 1st, 2nd and 3rd Defendants applied to strike out the plaint as res judicata, an abuse of process and for want of locus standi. The court framed three issues. First, it held the Plaintiff had no locus standi: a SACCO upon registration is a body corporate separate from its members, and members have no proprietary rights in its property; the Plaintiff produced no evidence of ownership. Second, the suit was res judicata, as ownership of the same title had been determined by the High Court, of equal and competent jurisdiction, and the Plaintiff claimed under a party to the former suit; adding parties could not evade the doctrine. Third, the Plaintiff's injunction application was dismissed entirely, and the Defendants' striking-out applications dated 21st January 2019 and 14th March 2019 were allowed entirely. The suit was struck out entirely with costs to the Defendants.

Key legal issues

#
01

Whether the Plaintiff had locus standi and capacity to sue on behalf of members of the co-operative society

Holding

The Plaintiff had no locus standi; the society, as a registered body corporate, is the only entity with proprietary interest in and capacity to enforce rights over the suit property.

Reasoning

The court held that a SACCO registered under the Co-operative Societies Act is a body corporate with perpetual succession capable of holding property and suing in its own name. The Plaintiff did not sue as registered proprietor but on behalf of members who, by the doctrine of separate legal personality, have no proprietary interest in the society's property. No evidence of members' ownership was produced; the only evidence showed the interested party as owner. Without proprietary interest, the Plaintiff lacked standing, which goes to the root of the suit.

p. 5
02

Whether the suit was res judicata by reason of Nairobi HCCC No. 493 of 2004

Holding

The suit was res judicata; ownership of the same title had been directly and substantially determined by the High Court in the former suit between parties under whom the Plaintiff claims.

Reasoning

Applying Section 7 of the Civil Procedure Act and the conjunctive elements set out in the IEBC v Maina Kiai case, the court found the Plaintiff claims under the interested party which was a party to the former suit, the same title was in contention, and the High Court (of equal and competent jurisdiction) had already determined ownership and directed transfer to the 1st Defendant. To find the 1st Defendant was not a bona fide purchaser and cancel his title would amount to sitting on appeal over the High Court's decision, granting itself jurisdiction it lacks.

p. 6
03

Whether the parties were entitled to the orders sought in their respective applications

Holding

The Plaintiff's injunction application was dismissed; the Defendants' striking-out applications dated 21st January 2019 and 14th March 2019 were allowed entirely.

Reasoning

Having found the Plaintiff lacked locus standi and the suit was res judicata, the court held the Plaintiff's application for temporary injunction unmerited and dismissed it with costs. Conversely, the Defendants' applications to strike out the plaint for want of locus standi and for being res judicata and an abuse of process were merited and allowed entirely with costs, resulting in the entire suit being struck out.

p. 6

Legal principles established

#
  • Upon registration as a co-operative society, a SACCO becomes a body corporate with perpetual succession, capable of holding property and suing and being sued in its own name, separate from its members.
  • Members of an incorporated body have no proprietary rights to the body's property, and only the body has capacity to enforce its legal rights; a person suing on behalf of such members without proprietary interest lacks locus standi.
  • Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.
  • A court of equal and competent jurisdiction having determined ownership of property, a subsequent court cannot make a contrary finding or cancel the title without impermissibly sitting on appeal and granting itself jurisdiction it does not have.

Court orders

#
  1. 1.The Plaintiff's suit is struck out entirely with costs to the Defendants/Respondents.
  2. 2.The Defendants'/Respondents' two Notices of Motion dated 21st January 2019 and 14th March 2019 are allowed entirely with costs to them.
  3. 3.The Plaintiff's application dated 14th December 2018 seeking temporary injunction/conservatory orders is dismissed entirely with costs to the 1st, 2nd and 3rd Defendants/Respondents.

Authorities

#

Legislation

  • Land Registration ActSection 28
  • Co-operative Societies Act (CAP 490)Section 42
  • Co-operative Societies Act (CAP 490)Section 12
  • SACCO Societies ActSection 2
  • Co-operative Societies Act, 1997 (No. 12 of 1997)not specified
  • Constitution of KenyaArticles 40, 162(1) & (2)
  • Environment and Land Court Act (2012)Section 131(1)
  • Civil Procedure ActSection 7

Cases cited (6)

  • Priscilla Jesang Koech …Vs… Rebecca Koech & 3 Others
    [2018] eKLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court, Civil Case No. 464 of 2000
  • Joseph Muthuri Ikunyua & 32 others v Co-operative Bank of Kenya Limited & 14 others
    [2018] eKLR
  • Salomon v A Salomon and Co Ltd
    [1897] AC 22
  • Omondi …Vs… National Bank of Kenya Limited and Others
    [2001] EA 177
  • The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 ([2017] eKLR)
Jurisdiction invoked
Environment and Land Court Act, Section 131(1); Articles 40 and 162(1) & (2) of the Constitution as invoked by the Plaintiff

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Rashid Kogi Muturi(Suing on his behalf and on behalf of members of Thika Muslim Housing Co-operative Society Limited claiming interest over L.R No.10821/531) v Screen Check Limited, Hassan A.A. Zubeidi, Joseph D.B.K Kimani t/aPyramid Auctioneer & Thika Land Registrar (Environment & Land Case 300 of 2018) [2019] KEELC 950 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/950/eng@2019-11-01

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