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ELCStruck Out· [2024] KEELC 6401 (KLR)

Romari & another v Balozi Housing Co-operative Society Limited (Land Case E020 of 2023) [2024] KEELC 6401 (KLR)

Not expressly stated in the judgment
26 September 2024
739 words in judgment
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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 court determined two preliminary objections raised in the Defendant's defence dated 15.9.2023: first, that the court lacked jurisdiction because the dispute is between a co-operative society and its member(s) and must, under Section 76 of the Co-operative Societies Act, be referred to the Co-operative Tribunal; and second, that the Plaintiff's claim, pegged on a 2006 contract but filed in 2023, was statute-barred under Sections 4(1)(a) and 7 of the Limitation of Actions Act. The Defendant filed submissions dated 9.5.2024 relying on Gatanga Coffee Growers v Gitau, Speaker of the National Assembly v Karume, Muthinja, Martin Kabubii Mwangi and Equity Bank v Mutie, arguing that a court without jurisdiction cannot transfer a suit to another forum. The Plaintiffs did not file submissions as directed. Applying the Mukisa Biscuit definition of a preliminary objection and the Court of Appeal's guidance in Hulbhai Gedi Abdille that a party must pursue an adequate alternative forum, the court found that Section 76(1)(b) gives the Co-operative Tribunal exclusive first-instance jurisdiction over such disputes and that it therefore lacked original jurisdiction. It declined to reach the limitation issue and struck out the suit, directing each party to bear their own costs in view of the unresolved dispute. Judgment delivered at Nairobi on 26 September 2024 by Lucy N. Mbugua, J.

Key legal issues

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Jurisdiction over disputes between a co-operative society and its members

Holding

The court lacks original jurisdiction; Section 76(1)(b) of the Co-operative Societies Act confers exclusive first-instance jurisdiction on the Co-operative Tribunal

Reasoning

Section 76(1)(b) of the Co-operative Societies Act gives the Co-operative Tribunal exclusive jurisdiction as court of first instance in disputes between co-operative societies or among members and past members. Applying the principle that a party must pursue an adequate alternative forum, the court held it could not entertain the claim and struck the suit out without pronouncing on limitation.

p. 2

Legal principles established

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  • Where a sufficient and adequate alternative forum exists, a party ought to pursue that forum rather than invoke the court process

Court orders

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  1. 1.Suit struck out for want of jurisdiction
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Co-operative Societies ActSection 76(1)(b)
  • Limitation of Actions ActSection 4(1)(a)
  • Limitation of Actions ActSection 7

Cases cited (8)

  • Gatanga Coffee Growers v Gitau
    [1970] EA 361
  • Speaker of the National Assembly v Karume
    (Civil Application 92 of 1992) KECA 42 (KLR)
  • Geoffrey Muthinja & Another v Samuel Muguna Henry & 1756 Others
    [2015] eKLR
  • Martin Kabubii Mwangi v County Government of Laikipia
    [2019] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour & Travel
    [2016] eKLR
  • Alba Petroleum v Total Marketing Kenya Limited
    [2019] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Secretary, County Public Service Board & another v Hulbhai Gedi Abdille
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the High Court as limited by Section 76(1)(b) of 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, "Romari & another v Balozi Housing Co-operative Society Limited (Land Case E020 of 2023) [2024] KEELC 6401 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6401/eng@2024-09-26

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