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ELCStruck Out· [2019] KEELC 4984 (KLR)

Mweu Ndaka Nzuma v Agnes Mwelu Muoki & another [2019] KEELC 4984 (KLR)

Environment and Land Court
21 January 2019
CMC.G. MBOGO
1,115 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 struck out a land claim against a co-operative because disputes over co-operative share transfers must first go to the Co-operative Tribunal.

What this practically means

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Executive summary

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The Defendants filed a notice of preliminary objection dated 25th May 2017 contending that the plaintiff's suit offended Section 76 of the Co-operative Societies Act, that the court lacked jurisdiction, that the suit did not fall within the purview of the ELC, and that it was an abuse of process. Counsel for the Defendants, Mr Orina, condensed the grounds into one issue - jurisdiction - and submitted that the dispute concerned share membership in Konza Ranching and Farming Co-operative Society Limited and therefore belonged to the Co-operative Tribunal under Section 76, citing the Karume principle on following prescribed procedures and authorities of Karanjah J and Muchemi J. Counsel for the Plaintiff countered that the claim sought a declaratory order and nullification of a title deed issued for want of letters of administration, which did not fall under Section 76(2). The court examined Section 76(1) of the Act and the pleadings, and found the plaintiff was challenging the transfer of membership number 391 held by a deceased person, through which certain parcels of land were held, allegedly unprocedurally transferred to another deceased person. That dispute fell squarely within Section 76(1)(a) as a dispute among persons claiming through deceased members. Applying the Karume principle, the court held the plaintiff had to pursue the Co-operative Tribunal first and could only approach the court on appeal from a Tribunal decision. The preliminary objection was upheld and the plaintiff's suit struck out with costs to the Defendants.

Key legal issues

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01

Whether the suit falls within Section 76(1) of the Co-operative Societies Act such that it must be referred to the Co-operative Tribunal

Holding

Yes; the dispute over transfer of a deceased member's share, through which land was held, is a dispute among persons claiming through deceased members concerning the business of a co-operative society and falls squarely within Section 76(1)(a)

Reasoning

The court examined the pleadings and found the crux of the plaintiff's claim was the nullification of a transfer of membership number 391 in Konza Ranching and Farming Co-operative Society Limited, through which certain parcels of land were held. Because that membership was allegedly unprocedurally transferred from the estate of a deceased member to another deceased person, the claim is a dispute by a person claiming through a deceased member, within the ambit of Section 76(1)(a), which mandates referral to the Tribunal.

p. 2
02

Whether the ELC has original jurisdiction to determine the suit

Holding

No; the Tribunal is the forum of first instance and this court can only entertain the matter on appeal from the Tribunal

Reasoning

Relying on the Karume principle that prescribed procedures must be strictly followed, and on Karanjah J's and Muchemi J's pronouncements, the court held that Section 76 ousts the court's original jurisdiction over co-operative society disputes. The plaintiff's proper route is the Co-operative Tribunal, with appeal lying to the High Court thereafter.

p. 2

Legal principles established

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  • Where a clear procedure for redress of a particular grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
  • A suit concerning transfer of share membership in a co-operative society, a dispute among persons claiming through deceased members, is within the exclusive jurisdiction of the Co-operative Tribunal under Section 76(1)(a), leaving the High Court/ELC only appellate jurisdiction

Court orders

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  1. 1.The Defendants' preliminary objection dated 25th May 2017 is upheld
  2. 2.The Plaintiff's suit is struck out
  3. 3.Costs of the suit are awarded to the Defendants

Authorities

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Legislation

  • Co-operative Societies ActSection 76
  • Co-operative Societies ActSection 76(1)
  • Co-operative Societies ActSection 76(2)
  • Co-operative Societies ActSection 81(1)

Cases cited (3)

  • Charles Keragita Arwenya V Nyakoe Farmers Co-operative Society Ltd
    [2016] eKLR
  • Speaker of the National Assembly v James Njenga Karume
    [1992] eKLR
  • Bernard Mugo & others V Kagaani South Farmer Cooperative Society & 4 others
    [2015] eKLR
Jurisdiction invoked
Section 76(1) of the Co-operative Societies Act (Cap 486) - ouster of the court's original jurisdiction over disputes concerning the business of a co-operative society

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, "Mweu Ndaka Nzuma v Agnes Mwelu Muoki & another [2019] KEELC 4984 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4984/eng@2019-01-21

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