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ELCDismissedELC Appeal No. 19 of 2020· [2021] KEELC 1300 (KLR)

Peter Wanjohi Official Liquidator Drumvalle Farmers Co-operative Society Limited v Pius Musimba Muasya & 2 others [2021] KEELC 1300 (KLR)

Environment and Land Court
28 October 2021
2,569 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 dismissed a liquidator's appeal because it simply repeated issues already decided in an earlier case between the same parties.

What this practically means

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Executive summary

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This was an appeal to the Environment and Land Court at Nairobi against a ruling of the Co-operative Tribunal delivered on 21 May 2020 in Tribunal Case No. 720 of 2016, which allowed the Respondents' application directing the Appellant, the Official Liquidator of Drumvale Farmers Co-operative Society Limited, to render a true account of the liquidation work done. The Tribunal's enforcement was tied to the lifting of the freeze on execution of decrees made before 15 March 2020. The Appellant advanced six grounds, including that the issues were pending before the Court of Appeal in Civil Appeal No. 125 of 2019, that the matter was res judicata, that the Respondents lacked locus standi as they had relinquished their interests in the Society, that the liquidation was 90% complete with claims time-barred by Gazette Notice No. 963 of 22 January 2010, and that the majority of members had resolved to withdraw claims against him. The Respondents countered that the appeal duplicated ELC Appeal No. 12 of 2017, in which Eboso J had dismissed a similar appeal on 19 September 2018, and relied on Section 7 of the Civil Procedure Act. The court found that grounds from the earlier appeal were repeated in the present one, that the Tribunal had issued a notice to show cause on 4 November 2020, and that no evidence established the pending Court of Appeal matter or the members' withdrawal resolution. The appeal was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether this appeal is res judicata

Holding

The appeal is res judicata because the grounds raised mirror grounds already considered in ELC Appeal No. 12 of 2017 between the same parties

Reasoning

The court compared the grounds of appeal in ELC Appeal No. 12 of 2017, decided by Eboso J on 19 September 2018, with the present appeal and found substantial overlap, with grounds d, e, f and g in the earlier appeal reappearing as grounds 3, 4 and 5 here. The same parties were litigating under the same title before a court of competent jurisdiction, and the earlier judgment was final, subject to the pending Court of Appeal matter.

p. 3
02

Whether the pending Court of Appeal proceedings barred the Tribunal from determining the application

Holding

The court found no evidence that Civil Appeal No. 125 of 2019 was pending, and in any event the Tribunal orders of 4 November 2020 show the issues remained live before the Tribunal

Reasoning

The Appellant asserted that similar issues were pending before the Court of Appeal, but the court noted that the judgment in ELC Appeal No. 12 of 2017 had been delivered in September 2018 and no material was produced to substantiate the assertion that the appeal was pending. The court also noted the Tribunal's notice to show cause issued on 4 November 2020, which reinforced its conclusion that the present appeal duplicated prior litigation.

p. 4
03

Whether the Respondents lacked locus standi

Holding

The court did not make a standalone finding on locus; the claim failed within the overall dismissal of the appeal as res judicata

Reasoning

The Appellant argued that the Respondents had transferred their shares and were strangers to the Society, and thus had no locus to institute proceedings or benefit from the Tribunal's orders. The court did not separately determine this ground, as the threshold res judicata finding disposed of the appeal. No material was found sufficient to warrant disturbing the Tribunal's orders.

p. 3

Legal principles established

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  • A matter is res judicata where the issues, parties, title/claim and jurisdiction coincide and the earlier decision was final
  • Parties cannot evade the doctrine of res judicata by adding parties or re-coaching causes of action in subsequent suits

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Co-operative Societies ActSection 62(1)(b)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (5)

  • Nancy Mwangi t/a Worthlin Marketers v Airtel Networks (K) Ltd (Formerly Celtel Kenya Ltd) & 2 Others
    [2014] eKLR
  • E.T. vs Attorney General & Another
    (2012) eKLR
  • Bernard Mugo Ndegwa vs James Nderitu Githae & 2 Others
    (2010) eKLR
  • Omondi vs National Bank of Kenya Limited and others
    (2001) EA 177
  • Njangu vs Wambugu and another, Nairobi HCCC No.2340 of 1991
    unreported
On appeal from
Co-operative Tribunal
Tribunal Case No. 720 of 2016
Jurisdiction invoked
Appeal from the Co-operative Tribunal under 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, "Peter Wanjohi Official Liquidator Drumvalle Farmers Co-operative Society Limited v Pius Musimba Muasya & 2 others [2021] KEELC 1300 (KLR)", Case Analysis (2021). ELC Appeal No. 19 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1300/eng@2021-10-28

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