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ELCPartially AllowedNotice of motion dated 27th September 2018· [2020] KEELC 605 (KLR)

Ufundi Savings & Credit Co-operative Society Limited v Francis Gitari Ndirangu & 299 others; Alex G. Marete & 121 others (Interested Parties) [2020] KEELC 605 (KLR)

Environment and Land Court
15 October 2020
727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an appeal from a Cooperative Tribunal is important enough to be decided by several judges, not just one.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi, delivered by L. Komingoi J on 15th October 2020, dealt with the residual prayer (e) of a notice of motion dated 27th September 2018, filed under Section 59 of the Civil Procedure Act and Order 42 Rules 22, 13 and 30 of the Civil Procedure Rules. By a consent recorded on 24th June 2019, all parties compromised the motion, allowing it except prayer (c) which was withdrawn, and granting prayers (b), (d), (e) and (f), with prayer (e) - that the file be placed before the Chief Justice to nominate a bench of three judges to hear the appeal - left for the court's determination. The appeal lay from a Cooperative Tribunal decision to the High Court under Section 81 of the Cooperative Societies Act, and was pending before the Environment and Land Court. The court examined Section 21 of the Environment and Land Court Act, which requires a single judge but permits matters certified as raising substantial questions of law under Article 165(3)(b) or (c), or concerning the impact of environment and land, to be heard by an uneven number of judges determined by the Chief Justice. The court held that neither statute mandates a bench for such appeals, but weighty issues had emerged at the Tribunal raising substantial questions of law, and additional parties with competing interests had been enjoined. In the interest of justice the appeal should be disposed of by a bench. The judge also disclosed acquaintance with members of the 3rd interested party and asked to be excused from the intended bench. The matter was forwarded to the Chief Justice for appointment of an uneven number of judges and further directions.

Key legal issues

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01

Whether the appeal raises a substantial question of law warranting a bench of uneven number of judges under Section 21 of the Environment and Land Court Act

Holding

Although no statute mandates a bench, weighty issues emerged at the Tribunal raising substantial questions of law, and competing interests among joined parties made disposal by a bench in the interest of justice.

Reasoning

The court noted that Section 21(1) prescribes a single judge but subsection (2) permits certification of matters raising substantial questions of law under Article 165(3)(b) or (c) or concerning environment and land impact, to be heard by an uneven number of judges determined by the Chief Justice. Weighty issues emerged at the Tribunal and more parties with competing interests had been enjoined, justifying referral to the Chief Justice for constitution of a bench.

p. 2
02

The judge's possible conflict of interest regarding the 3rd interested party

Holding

The judge disclosed acquaintance with members of the 3rd interested party and requested to be excused from the intended bench.

Reasoning

The judge voluntary disclosed a personal connection with members of the 3rd interested party and sought to be excluded from any bench the Chief Justice might constitute, in the interest of impartiality.

p. 2

Legal principles established

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  • Neither the Environment and Land Court Act nor the Cooperative Societies Act mandates that appeals from the Cooperative Tribunal be heard by a bench; a bench may nonetheless be constituted where substantial questions of law arise under Section 21 of the Environment and Land Court Act, at the discretion of the Chief Justice.

Court orders

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  1. 1.The matter is forwarded to the Honourable Chief Justice for appointment of an uneven number of judges to hear the appeal and give further directions and/or a determination
  2. 2.The matter be placed before the Honourable Chief Justice on a date convenient to give directions

Authorities

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Legislation

  • Civil Procedure ActSection 59
  • Civil Procedure RulesOrder 42 Rules 22, 13 and 30
  • Environment and Land Court ActSection 21
  • Cooperative Societies Act, No. 12 of 1997Section 81
  • Constitution of KenyaArticle 165(3)(b) and (c)
On appeal from
Cooperative Tribunal
Jurisdiction invoked
Section 21 of the Environment and Land Court Act; Section 81 of the Cooperative Societies Act No. 12 of 1997

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, "Ufundi Savings & Credit Co-operative Society Limited v Francis Gitari Ndirangu & 299 others; Alex G. Marete & 121 others (Interested Parties) [2020] KEELC 605 (KLR)", Case Analysis (2020). Notice of motion dated 27th September 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/605/eng@2020-10-15

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