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ELCOther· [2021] KEELC 2209 (KLR)

Johnson Miano Gatu & 3 others v Moses Mukhaya & 5 others [2021] KEELC 2209 (KLR)

Environment and Land Court
14 June 2021
KBK. Bor
791 words in judgment
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The bottom line

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Kenya's Environment and Land Court threw out a cooperative land dispute, ruling only the Cooperative Tribunal can hear disputes between cooperative members.

What this practically means

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Executive summary

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The Plaintiffs, described as former officials of Nairobi Railways Consumer Cooperative Society Limited (a society placed in liquidation), filed a suit concerning land reference number 2009/2763 owned by that society, seeking declarations that the land was sold illegally, nullification of transfers, an account of the purchase price, and an order that the National Land Commission revoke the transfer so the title reverts to the society. The 1st and 5th Defendants raised a preliminary objection on 4/7/2018 contending that the court lacked jurisdiction, citing Sections 76 and 81 of the Cooperative Societies Act, the pendency of Tribunal Cause Number 359 of 2016 over the same subject matter, and authorities including Adero Adero & Another v Ulinzi Sacco Society Limited. The Plaintiffs conceded membership but argued the dispute involved non-members and that they needed the National Land Commission to produce records to identify the present owner for joinder. The court noted the Plaintiffs made no submissions on the pending Tribunal cause, held that the reliefs sought showed a dispute between members/former members and the society touching its business, doubted that the National Land Commission has any such record-producing mandate, and observed that registry searches identify proprietors. The preliminary objection was upheld, with the Plaintiffs to bear the 1st and 5th Defendants' costs. K. Bor, J delivered the judgment virtually at Nairobi on 14 June 2021.

Key legal issues

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01

Whether the Environment and Land Court had jurisdiction over a land dispute involving a cooperative society in liquidation and its former members/officials

Holding

The court lacked jurisdiction; the dispute must be referred to the Cooperative Tribunal.

Reasoning

Section 76 of the Cooperative Societies Act mandates that disputes concerning the business of a cooperative society arising among members, former members, or between members and the society or its committee be referred to the Cooperative Tribunal. Section 81 restricts the High Court to appeals from the Tribunal. The Plaintiffs admitted they and the 1st to 3rd Defendants were members of the society, and the reliefs sought concerned land owned by that society, so the dispute related to the business of the society.

p. 2
02

Whether joinder or intended joinder of non-members (and reliance on the National Land Commission to produce ownership records) removed the dispute from Section 76

Holding

No; the substance of the dispute remained a members'/society dispute, and the NLC has no mandate to produce ownership records for joinder purposes since any party can conduct a registry search.

Reasoning

The Plaintiffs argued they sought reliefs against entities that were not members of the society and wished to have the 6th Defendant produce records to enable them to join the present owner. The court held that the essence of the dispute remained between members/former officials and the society concerning its land, and that ascertaining the registered proprietor is achievable by an ordinary search at the Lands Registry, not through the National Land Commission.

p. 2

Legal principles established

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  • A dispute between members of a cooperative society relating to the business of the society falls within the exclusive jurisdiction of the Cooperative Tribunal under Section 76 of the Cooperative Societies Act, and the High Court's jurisdiction is restricted to appeals under Section 81.

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The Plaintiffs to meet the costs of the 1st and 5th Defendants for this suit

Authorities

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Legislation

  • Cooperative Societies ActSection 76
  • Cooperative Societies ActSection 81
  • Environment and Land Court Actnot specified
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (3)

  • Adero Adero & Another v Ulinzi Sacco Society Limited
    [2002] eKLR
  • Gerald Wambua Makau v Lukenya Ranching and Farming Cooperative Society Limited and Another
    [2004] eKLR
  • Republic v Cooperative Tribunal & 2 Others, Ex parte Jackson Wekesa Abala
    [2019] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and the Environment and Land Court Act; Section 76 and Section 81 of the Cooperative Societies Act (jurisdiction of the Cooperative Tribunal)

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, "Johnson Miano Gatu & 3 others v Moses Mukhaya & 5 others [2021] KEELC 2209 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2209/eng@2021-06-14

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