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ELCStruck Out· [2019] KEELC 3067 (KLR)

Susan Kakusi K Kilundo alias Kasisi Katunga Kilundo v James Mwalili Sila & another [2019] KEELC 3067 (KLR)

Environment and Land Court
29 May 2019
MGMBOGO C. G.
2,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit because disputes involving people who bought land through co-operative society members must go to the Co-operative Tribunal.

What this practically means

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Executive summary

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The Third Party, Konza Ranching & Farming Co-operative Society Limited, raised a Notice of Preliminary Objection dated 31st August 2018 arguing that the Environment and Land Court lacked jurisdiction over the Plaintiff's suit, which sought eviction of the Defendant from Agricultural Plot Number 7 Malili and a permanent injunction against trespass, plus loss of user. The Third Party relied on Sections 13, 27(1), 76, 77 and 81 of the Co-operative Societies Act, Rule 6 of the Co-operative Societies Rules and paragraph 53 of its registered By-laws, contending the dispute was one of membership/share claims to be resolved by the Co-operative Tribunal. The Defendant supported the objection; the Plaintiff opposed, arguing the Defendant was not a member of the society and that her claim was one of trespass under Article 162 of the Constitution and Section 13(2)(e) of the Environment and Land Court Act, relying on the Nanasi Housing case where a non-member's dispute was held outside the Tribunal's exclusive jurisdiction. The court held that the Defendant bought the plot directly from Katunga Kilundo, a member, and therefore claimed through a member within Section 76(1); the Nanasi case was distinguishable on the chain of transfer. The proper forum is the Co-operative Tribunal, with appeal lying to the High Court. The Preliminary Objection was upheld, the Plaintiff's suit was struck out, and the Defendant was ordered to bear the costs of the application.

Key legal issues

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01

Whether the dispute over ownership of Agricultural Plot Number 7 Malili falls within Section 76(1) of the Co-operative Societies Act and thus the exclusive jurisdiction of the Co-operative Tribunal

Holding

Yes. The Defendant bought the plot directly from Katunga Kilundo, a member of the society, so his claim is one of a person claiming through a member, concerning the society's business (collective farm management), and must go to the Co-operative Tribunal

Reasoning

The court read Section 76(1) to cover persons claiming through members. The society's by-laws show its objectives include acquiring land and managing it as a collective farm for members' benefit, which is its business. The Defendant bought directly from the member Katunga Kilundo and claims through that purchase, unlike the non-member buyer in the authority relied on by the Plaintiff. The dispute is therefore within Section 76(1), and the Defendant sought to enjoin the society to show his connection with Katunga Kilundo.

p. 3
02

Whether James Mwangi Kariuki v. Nanasi Housing Co-operative Society Ltd (non-member case) applies

Holding

No, it is distinguishable because in that case the claimant was a non-member who had bought from another non-member, whereas here the Defendant bought directly from the original member

Reasoning

The court distinguished the Plaintiff's authority on the chain of transfers: in Nanasi, the appellant bought from Evans Mburu Muthemba, who had in turn bought from the original member John King'oo Mutunga, so he was a non-member dealing with a non-member. Here the Defendant bought directly from Katunga Kilundo, the member, meaning his claim arises through a member and squarely within the Tribunal's jurisdiction.

p. 3

Legal principles established

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  • A person claiming through a member, past member or deceased member of a co-operative society must have any dispute concerning the business of the society referred to the Co-operative Tribunal, which has exclusive first-instance jurisdiction
  • Where a statute provides a clear procedure for redress, that special procedure must be strictly adhered to
  • Parties may approach the High Court (or ELC) in appellate jurisdiction after the Co-operative Tribunal determines the dispute

Court orders

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  1. 1.The Preliminary Objection dated 31st August 2018 is upheld
  2. 2.The Plaintiff's suit is struck out
  3. 3.The costs of the application shall be borne by the Defendant

Authorities

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Legislation

  • Co-operative Societies ActSections 13, 27(1), 76, 76(1), 77, 81, 81(1)
  • Co-operative Societies RulesRule 6
  • Environment and Land Court ActSection 13(2)(e)
  • Constitution of Kenya, 2010Article 162
  • Registered By-laws of Konza Ranching & Farming Co-operative Society LimitedParagraph 53

Cases cited (4)

  • Charles Keragita Arwenya vs. Nyakoe Farmers' Co-operative Society Ltd
    [2016] eKLR
  • Speaker of the National Assembly vs. James Njenga Karume
    [1992] eKLR
  • Bernard Mugo & others v. Kagaari South Farmers Co-operative Society & 4 others
    [2015] eKLR
  • James Mwangi Kariuki vs. Nanasi Housing co-operative Society Ltd.
    [2015] eKLR
Jurisdiction invoked
Article 162 of the Constitution and Section 13(2)(e) of the Environment and Land Court Act, 2011 (as invoked by the Plaintiff); the court held the dispute instead falls under Section 76(1) of the Co-operative Societies 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, "Susan Kakusi K Kilundo alias Kasisi Katunga Kilundo v James Mwalili Sila & another [2019] KEELC 3067 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3067/eng@2019-05-29

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