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ELCStruck OutNot stated in judgment· [2025] KEELC 3942 (KLR)

Ngokonyo & another v Liquidators, Kagaa Farmers Co-operative Socity Limited (Environment & Land Case E026 of 2024) [2025] KEELC 3942 (KLR)

Environment and Land Court
19 May 2025
1,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A land dispute with a co-operative society in liquidation must go to the Co-operative Tribunal, not the Environment and Land Court, or the case will be struck out.

What this practically means

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Executive summary

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The Defendant filed a preliminary objection dated 22-11-2024 contending that the Plaintiffs' suit - seeking a declaration, specific performance and permanent injunction over L.R. Nos. Makuyu/Kimorori/BLK 3/4621 and 4624, parcels allegedly purchased in 2016 and 2017 - was brought without the leave of the court as allegedly required by Sections 64(1) and 66 of the Co-operative Societies Act read with Section 228 of the Companies Act. The Defendant, a co-operative society in liquidation, denied receiving the purchase money, denied capacity for specific performance, and challenged the court's jurisdiction. The court framed four issues: the proper forum, whether leave was needed, whether specific performance could issue, and whether the suit lay in the lowest competent court. It held that the dispute, being between members and the society and concerning the society's business, falls within the Co-operative Tribunal under Section 76(1)(b). It found no leave requirement, since Section 228 of the Companies Act only criminalises breach of disqualification orders. On specific performance, it observed the plaintiffs had not pleaded special circumstances. It further held the suit should have been filed in the Magistrates' Court, the subject-matter value not exceeding Kshs 20 million, per Section 11 of the Civil Procedure Act. The suit was struck out with costs to the Defendant.

Key legal issues

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01

Proper forum: ELC vs Co-operative Tribunal

Holding

The dispute falls within the Co-operative Tribunal's exclusive jurisdiction under Section 76(1)(b) of the Co-operative Societies Act

Reasoning

The plaintiffs are members of the defendant society and the dispute concerns the society's business, namely ownership of the society's land sold during liquidation. Section 76(1)(b) mandates reference of member-versus-society disputes concerning the society's business to the Tribunal. Jurisdiction is therefore oustted at the threshold.

p. 3
02

Leave to sue a society in liquidation

Holding

Leave is not required; the preliminary objection misread Section 228 of the Companies Act, which criminalises contravention of disqualification orders and says nothing about leave

Reasoning

Section 228 as reproduced creates an offence for a person subject to a disqualification order who contravenes it. It imposes no requirement of leave before filing suit. The plaintiffs suffer no disability and have capacity to sue; the objection on this limb fails even though the suit is ultimately struck out on forum grounds.

p. 3
03

Specific performance

Holding

Not granted on the pleadings; no special circumstances established, and in any event the court lacks jurisdiction

Reasoning

Specific performance is discretionary and equitable; the plaintiff must show damages inadequate, the subject matter rare or unique, freedom from blame, absence of laches, and no undue hardship to the defendant. The plaintiffs' pleadings disclosed no special circumstances and their documents were not on record.

p. 3
04

Pecuniary jurisdiction / lowest court

Holding

The suit should have been filed in the Magistrates' Court as the value of the subject matter was not shown to exceed Kshs 20 million

Reasoning

Section 11 of the Civil Procedure Act requires suits to be instituted in the court of the lowest grade competent to try them. Since the value of the subject matter was not demonstrated to exceed the Magistrates' Court's Kshs 20 million pecuniary limit, the ELC was not the appropriate first forum.

p. 3

Legal principles established

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  • A dispute concerning the business of a co-operative society between members and the society must be referred to the Co-operative Tribunal
  • No leave of the court is required for a member to sue a co-operative society in liquidation
  • Every suit shall be instituted in the court of the lowest grade competent to try it

Court orders

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  1. 1.Plaintiffs' suit struck out
  2. 2.Costs of the suit to the Defendant
Jurisdiction invoked
First-instance original jurisdiction of the Environment and Land Court; objection grounded on Section 64(1) and Section 66 of the Co-operative Societies Act (Cap 490) and Section 228 of the Companies 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, "Ngokonyo & another v Liquidators, Kagaa Farmers Co-operative Socity Limited (Environment & Land Case E026 of 2024) [2025] KEELC 3942 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3942/eng@2025-05-19

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