Numa Coffee Growers Cooperatives Society (In Liquidation) v Ngoi & another (Environment and Land Miscellaneous Case E041 of 2025) [2025] KEELC 7847 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent was properly served with the application dated 22nd May 2025 and whether he served his own application
The 1st Respondent was duly served via WhatsApp and did not challenge service; however, he failed to serve his own application dated 4th July 2025 on the Applicant, contrary to Order 5 Rule 8 of the Civil Procedure Rules, though the Court proceeded to consider it since the Applicant responded.
The Applicant's advocate swore an affidavit of service dated 12th June 2025 confirming WhatsApp service on 3rd June 2025. The 1st Respondent did not deny or challenge service, complaining only about the competence of the miscellaneous cause. His silence on service satisfied the Court. Conversely, his failure to serve his own motion was an irregularity, but the Court exercised discretion to consider it because the Applicant had responded and submitted on the application.
Whether the Court could issue substantive orders on 17th June 2025
The orders lifting the restriction issued on 17th June 2025 were irregular because the date was fixed for directions/mention only and was never converted into a hearing with notice to all parties.
A mention or directions date serves case-management purposes only. Order 51 Rule 8 of the Civil Procedure Rules requires a Notice of Motion to be heard inter partes after service. Nothing on the record showed the mention of 17th June 2025 was converted into a hearing with notice to the parties, so the court that day acted under a mistaken belief and made final determinations without authority. Reliance was placed on Patel vs E.A. Cargo Handling Services Ltd and Kenya Trypanosomiasis Research Institute vs Anthony Kabimba Gusinjilu on setting aside orders made without notice ex debito justiciae.
Whether the application of 22nd May 2025 was properly before the Court
It was procedurally incompetent: filed as a miscellaneous cause seeking final orders affecting ownership of registered land, and instituted by a society under liquidation in its own name without the Commissioner's sanction.
Order 3 Rule 1 requires suits to be instituted by plaint, petition, originating summons or prescribed notice of motion; miscellaneous causes are reserved for non-contentious matters. The motion sought final orders affecting interests in registered land, which per David Macharia Kinyuru vs District Land Registrar, Naivasha cannot be handled through a miscellaneous application. Additionally, under Section 66 of the Co-operative Societies Act, a society in liquidation loses capacity to sue in its own name, and no evidence showed the Commissioner's written sanction. The proceedings were thus a nullity ab initio.
Legal principles established
#- Substantive orders determining parties' rights should only issue on a hearing date after service and notice to all parties, not on a mention or directions date
- Removal of cautions or restrictions touching on ownership or proprietary rights cannot be done through a miscellaneous application but requires a substantive suit
- Once a co-operative society is placed under liquidation, no legal proceedings may be commenced or continued in its name except by or against the liquidator and with the sanction of the Commissioner for Co-operative Development
Court orders
#- 1.The orders issued on 17th June 2025 are set aside, with the result that the restriction over land parcels Ting'ang'a Cianda Block 1/1674 measuring 0.5535Ha and Ting'ang'a Cianda Block 1/1694 measuring 0.0450Ha is reinstated
- 2.The Miscellaneous application is struck out for being incompetent and fatally defective
- 3.Any future proceedings shall be brought through a substantive suit filed by or in the name of the duly appointed Liquidator with the requisite sanction of the Commissioner for Co-operative Development
- 4.Each party shall bear its own costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Numa Coffee Growers Cooperatives Society (In Liquidation) v Ngoi & another (Environment and Land Miscellaneous Case E041 of 2025) [2025] KEELC 7847 (KLR)", Case Analysis (2025). Notice of Motion dated 4th July 2025 (Miscellaneous Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7847/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.