John Aboko Kumenda v Chairman Mobamba Cooperative Society & 5 others [2021] KEELC 1404 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether an order of prohibition was available to the Applicant
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
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.
Whether the Applicant established a prima facie case with a probability of success
The Applicant, having demonstrated registered title to the suit parcels, established a prima facie case
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.
Whether the Applicant would suffer irreparable loss not compensable by damages
The court was persuaded that irreparable loss was likely, warranting preservation of the subject matter
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.
Legal principles established
#- 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
#- 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.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.