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ELCDismissedELC No. 5 of 1990 (Meru), consolidated with CMCC No. 103 of 2009 and CMCC No. 603 of 2010· [2019] KEELC 3002 (KLR)

Maria Kanario M’Itwamwari v Igoki Mutethia Farmers Co-operative Society & 2 others [2019] KEELC 3002 (KLR)

Environment and Land Court
3 June 2019
2,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court ruled that disputes over co-operative land already registered in someone's name belong in the ELC, not the Co-operative Tribunal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (E.C. Cherono, ELC Judge, dated 3rd June 2019) determines a Notice of Preliminary Objection dated 21st November 2018 raised by Wambugu & Muriuki Advocates for the 3rd defendant in consolidated suits - ELC No. 5 of 1990 (the parent case), CMCC No. 103 of 2009 and CMCC No. 603 of 2010 - all concerning land parcel No. KIRIMARA/KITHITHINA BLOCK 1/562. The objector raised seven grounds, principally that the Court lacks jurisdiction under Sections 76 and 77 of the Co-operative Societies Act Cap 490 because the dispute involves a co-operative society, its officials, members and persons claiming through a deceased member over share No. 128 originally held by Maria Kanario (deceased); it was also argued that the claim in CMCC No. 603 of 2010 was res judicata given a consent judgment of 16th March 1993 in HCCC No. 336 'A' of 1991. Counsel opposing submitted that only the plaintiff in ELC No. 5 of 1990 was in dispute with the society, the other suits involving adverse possession and claims by a registered owner, and that the objection was an abuse of process. Applying the Mukisa Biscuits test, the Court held that the objection raised no pure point of law: whether the sub-division and transfer of the original parcel were properly done requires viva voce evidence. Further, once land acquired through a society share is registered in a person's name, it ceases to be society property and disputes fall under Section 13(2)(a) of the Environment and Land Court Act. The Preliminary Objection was dismissed with costs.

Key legal issues

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01

Whether the Preliminary Objection raises pure points of law

Holding

It does not; the grounds require factual ascertainment, particularly regarding the sub-division and transfer of the original parcel

Reasoning

Applying the Mukisa Biscuits definition, the Court perused the pleadings and found that the challenge to the sub-division of the original parcel and the circumstances of transfer would require viva voce evidence. No single point of law was identified, so the objection fails at the threshold as improperly framed.

p. 3
02

Whether the dispute falls under Section 76 of the Co-operative Societies Act Cap 490

Holding

No; the dispute concerns registered land, not the business of a co-operative society among members

Reasoning

The subject of all three consolidated suits is land parcel KIRIMARA/KITHITHINA BLOCK 1/562, registered in the name of Cornelius Muthuri. Though the land may have originated as a share of a co-operative member, once registered in a person's name it ceases to be society property, and jurisdiction vests in the Environment and Land Court under Section 13(2)(a) of the ELC Act. Most parties are not members of the society.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained
  • Once land acquired through shares in a co-operative society is registered in the name of a shareholder or other person, it ceases to be the property of the society and disputes over it fall within the Environment and Land Court's jurisdiction under Section 13(2)(a) of the ELC Act

Court orders

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  1. 1.The Notice of Preliminary Objection dated 21st November 2018 is dismissed
  2. 2.Costs of the Preliminary Objection to the plaintiffs/defendants who opposed it

Authorities

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Legislation

  • Co-operative Societies Act Cap 490 Laws of KenyaSection 76
  • Co-operative Societies Act Cap 490 Laws of KenyaSection 77
  • Environment and Land Court ActSection 13(2)(a)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (9)

  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd
    (1969) E.A 696
  • Lukenya Ranching & Farming Co-operative Society Ltd Vs Kavoloto
    (1970) 1 E.A 414
  • Gatanga Coffee Growers Co-operative Society Ltd Vs Gitau
    (1970) 1 E.A 361
  • George & 15 Others Vs Limuru Pyrethrum Growers Co-operative Limited & 9 Others
    (1989) e K.L.R.
  • Earnest Muiruri Njoroge & 28 Others Vs Kabiru Karanja & 4 Others
    (1997) e K.L.R.
  • Joseph Njuguna Mwaura & 2 Others Vs Republic
    (2013) e K.L.R.
  • Law Society of Kenya Vs The Centre for Human Rights and Democracy
    Supreme Court of Kenya Petition No. 14 of 2013, (2014) e K.L.R.
  • Gulam Miriam Vs Julius Charo Karisa
    (2015) e K.L.R.
  • Benson G. Mutahi Vs Raphael Gichovi Munene Kabutu & 4 Others
    (2014) e K.L.R.
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with Section 13(2)(a) of the Environment and Land Court 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, "Maria Kanario M’Itwamwari v Igoki Mutethia Farmers Co-operative Society & 2 others [2019] KEELC 3002 (KLR)", Case Analysis (2019). ELC No. 5 of 1990 (Meru), consolidated with CMCC No. 103 of 2009 and CMCC No. 603 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3002/eng@2019-06-03

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