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ELCPartially AllowedPetition No 1 of 2021· [2021] KEELC 1404 (KLR)

John Aboko Kumenda v Chairman Mobamba Cooperative Society & 5 others [2021] KEELC 1404 (KLR)

Environment and Land Court
19 October 2021
2,370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, the registered proprietor of land parcels CENTRAL KITUTU/MWAMOSIOMA/3834, 2783, 3910, 3935 and 3936 arising from the sub-division of the original parcel 701, moved the court by Notice of Motion dated 18th January 2021 seeking orders of prohibition to stop a Special General Meeting of Mobamba Cooperative Society from adopting an inquiry report concerning his titles, and an interim injunction to protect his ownership and possession. He alleged the inquiry, initiated after complaints to the Governor of Kisii County and conducted by a team appointed under Gazette Notice no. 9342 of 13th November 2020 pursuant to section 58 of the Cooperative Societies Act, breached his rights to fair administrative action and a fair hearing because the summons did not disclose the allegations. The 1st and 2nd Respondents opposed, contending the meeting had already concluded before service of the court order, that the inquiry was lawful, and that the Society, not having been sued as a corporate entity, could not be bound by orders. The court framed two issues: entitlement to prohibition and to a temporary injunction. Applying the Kenya National Examination Council principles, it held prohibition was unavailable since it was sought against individuals and the meeting had already taken place. Applying Giella v Cassman Brown, it found a prima facie case from the registered titles and a likelihood of irreparable loss since the Society's members had begun chasing away the Applicant's workers. The application succeeded in part: a temporary injunction issued in respect of four of the parcels, with costs in the cause.

Key legal issues

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01

Whether an order of prohibition was available to the Applicant

Holding

The prayer for prohibition was not well-founded because it was directed at individuals rather than a tribunal or public body, and the impugned meeting had already been held

Reasoning

The court applied the Kenya National Examination Council v Republic ex parte Geoffrey Gathenji Njoroge principles: prohibition is directed to an inferior tribunal or public body to stop proceedings in excess of jurisdiction or in breach of natural justice, and it looks to the future. It cannot quash a decision already made. Here the Special General Meeting had taken place, so the order would be inefficacious.

p. 3
02

Whether the Applicant established a prima facie case with a probability of success

Holding

The Applicant, having demonstrated registered title to the suit parcels, established a prima facie case

Reasoning

The Applicant annexed Certificates of Official Search showing he was the registered owner of the suit parcels. Relying on Stephen Muthami Mbau v Kenya Railways Corporation, the court held that a registered owner whose titles were on the face of it properly acquired has a prima facie case; the Respondents' process of revoking the titles under the Cooperative Societies Act did not displace this at the interlocutory stage.

p. 4
03

Whether the Applicant would suffer irreparable loss not compensable by damages

Holding

The court was persuaded that irreparable loss was likely, warranting preservation of the subject matter

Reasoning

The Applicant deponed that after adoption of the inquiry report, members of the Cooperative Society claimed to have reclaimed the suit property and chased away his workers. The court found the members were intent on taking over the Applicant's properties and had begun asserting their claim, making an injunction necessary to preserve the subject matter pending the hearing of the main suit.

p. 4

Legal principles established

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  • An order of prohibition lies against an inferior tribunal or body to stop proceedings in excess of jurisdiction or in contravention of the rules of natural justice, but it cannot quash a decision already made; it only prevents the making of a contemplated decision
  • A registered proprietor whose titles on the face of it were properly acquired establishes a prima facie case at the interlocutory stage, shifting the burden to the challengers to demonstrate the titles are challengeable within the law

Court orders

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  1. 1.A temporary injunction restraining the Respondents, their agents, servants and/or anyone acting under their instructions from interfering with the Petitioner's ownership and possession of parcels CENTRAL KITUTU/MWAMOSIOMA/3834, 2783, 3910 and 3936 pending hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Cooperative Societies Act Cap 490Section 58
  • Constitution of Kenya, 2010Articles 47 and 50

Cases cited (4)

  • Kenya National Examination Council versus Republic ex parte Geoffrey Gathenji Njoroge & 9 other
    [1997] eKLR
  • Giella v Cassman Brown & Company Limited
    1973 E.A 358
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Stephen Muthami Mbau & 11 Others v Kenya Railways Corporation and the National Land Commission (Interested Party)
    (2020) eKLR
Jurisdiction invoked
Constitutional petition jurisdiction (Petition filed; reliefs sought under Articles 47 and 50 of the Constitution and the Cooperative Societies Act Cap 490)

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, "John Aboko Kumenda v Chairman Mobamba Cooperative Society & 5 others [2021] KEELC 1404 (KLR)", Case Analysis (2021). Petition No 1 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1404/eng@2021-10-19

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