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ELCPartially AllowedNot stated in judgment (application dated 11/03/2021 within a suit concerning Nairobi/Block 82/8760)· [2021] KEELC 2229 (KLR)

Vincent Ekeya Omuse & 7 others v Sauti Savings & Credit Co-operative Society Limited & 9 others [2021] KEELC 2229 (KLR)

Environment and Land Court
9 August 2021
2,008 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed it can hear land-buying disputes against cooperatives, and froze the property's status until trial.

What this practically means

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Executive summary

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The Plaintiffs, purchasers of plots subdivided from Nairobi/Block 82/8760 registered in the name of the 1st Defendant, a cooperative society under the Co-operative Societies Act, sought a caveat and an injunction restraining the Defendants from selling, transferring, entering upon or developing the Suit Property, alleging that title deeds were never issued and that the Defendants began construction activity in March 2021. The 1st Defendant admitted selling plots but relied on ADM resolutions of 3/5/2014 (confirmed 27/4/2019) to dispose of the property to recover costs exceeding Kshs 200,000,000 spent protecting it, and noted a bank charge of Kshs 34,600,000 to Co-operative Bank. It filed a preliminary objection contending the suit was misconceived, time barred, and belonged to the Co-operatives Tribunal. The court dismissed the objection: the ELC has jurisdiction because Section 76 of the Co-operative Societies Act excludes non-members' disputes, and the sale agreements showed purchases as ordinary purchasers, not members; limitation and Section 3(3) Law of Contract Act issues require evidence at trial. On the application, the court found the ADM resolution did not recognise the portions sold to the Plaintiffs, whose rights were at risk. Balancing the parties' positions - including that the Plaintiffs claim only about 7.98% of the land - the court ordered status quo over the Suit Property to be maintained pending trial, with costs of the application in the cause.

Key legal issues

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01

Whether the ELC or the Co-operatives Tribunal has jurisdiction over this dispute

Holding

The ELC has jurisdiction; the Tribunal's jurisdiction under Section 76 excludes disputes by non-members, and the sale agreements were between the Plaintiffs as purchasers and the 1st Defendant as vendor, not member transactions

Reasoning

Section 76 of the Co-operative Societies Act confers jurisdiction on the Tribunal over disputes between members/past members and the society under Section 76(1)(b). Only the 1st Plaintiff claimed membership; no proof of the others' membership was provided, and the exhibited sale agreements do not show purchases as members. The dispute concerns title to and dealing with land, within Section 13 of the ELC Act.

p. 2
02

Whether the limitation objection could be determined preliminarily

Holding

No - it requires evidence of when the causes of action arose, given differing completion dates in the sale agreements

Reasoning

The Defendants dated the cause of action to the sale agreements; the Plaintiffs to the March 2021 interference. The agreements contain different completion dates determinable only at trial. A preliminary objection must rest on facts as pleaded without need for further proof.

p. 3
03

Whether a caveat and injunction should issue to protect the Plaintiffs' claimed interests

Holding

The court preserved the position by ordering status quo over the Suit Property pending trial, in the interest of justice and preservation of the subject matter

Reasoning

The Defendants did not deny selling the plots or the activities on the land. The 2014 ADM resolution (confirmed 2019) to dispose of the property did not recognise the portions already sold to the Plaintiffs, placing their rights at risk. Balancing the parties' interests and the small area claimed (7.98%), status quo was the just preservation measure.

p. 3
04

Whether the 3rd and 4th Plaintiffs' claims fail for want of written agreements under Section 3(3) of the Law of Contract Act

Holding

Reserved for determination at the hearing

Reasoning

The plaint indicates the 4th Plaintiff purchased plot no. 533(1317); whether there was contravention of Section 3(3) of the Law of Contract Act requires evidence and cannot be resolved on a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection should raise pure points of law requiring no evidence
  • Jurisdiction must be addressed as soon as it is raised
  • The ELC has jurisdiction over land-sale disputes involving non-members of a cooperative society; the Co-operatives Tribunal's jurisdiction under Section 76 excludes disputes by non-members
  • Limitation defences requiring evidence of when the cause of action arose cannot be determined on a preliminary objection

Court orders

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  1. 1.Preliminary objection dated 04/05/2021 dismissed on its grounds
  2. 2.Status quo pertaining to Nairobi/Block 82/8760 to be maintained pending hearing and final determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Land ActSection 150
  • Co-operative Societies Act, 2007Sections 2, 76 (and 76(1)(a),(b),(c))
  • Co-operatives Societies Act No. 12 of 1997Not specified
  • Limitation of Actions ActNot specified
  • Law of Contract ActSection 3(3)
  • Registered Land Act (repealed)Not specified
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 13 of the ELC Act and 150 of the Land 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, "Vincent Ekeya Omuse & 7 others v Sauti Savings & Credit Co-operative Society Limited & 9 others [2021] KEELC 2229 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 11/03/2021 within a suit concerning Nairobi/Block 82/8760). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2229/eng@2021-08-09

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