Njuguna (Suing as the personal & legal representative/administrator of the Estate of the Late Monica Wanjiku Thuo - Deceased) v Ng'undu Farmers Co-operative Society Limited (In Liquidation) & 2 others (Environment and Land Miscellaneous Case E170 of 2025) [2025] KEELC 8301 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Leave to sue a liquidator of a co-operative society under liquidation
Leave under Section 432(2) of the Insolvency Act is misconceived because the Insolvency Act does not apply to co-operative societies; the prayer is moot
Section 66(1)(b) of the Co-operative Societies Act empowers a liquidator to institute and defend suits on behalf of the society. Section 95 of the same Act expressly excludes the application of the Insolvency Act to co-operative societies except as provided by rules under Section 91. Consistent with Ngokonyo and Gitere Kahuro, the court held there is no statutory basis for invoking the Insolvency Act, rendering the leave prayer moot.
Compelling production of title documents under Article 35
Application fails; the Applicant did not follow the administrative path under the Access to Information Act and the request was speculative since he concedes no separate title exists
Article 35 and the Access to Information Act require a written request to the designated information officer, and deemed rejection precedes judicial intervention. The Applicant made only one letter to the Liquidator with no follow-up to the Registrar, and did not show inability to obtain records via a registry search. His own affidavit conceded the parcel title had not been processed, making the request exploratory.
Temporary injunction and material non-disclosure
Non-disclosure of previous proceedings was not material; res judicata and sub judice inapplicable at this stage; but no prima facie case established
Although the Applicant failed to disclose prior suits, the succession cause concerned intra-family disputes, and in ELC No. 201 of 2017 the claim was against Patricia Wanjiku Mwaura, not the liquidator as registered owner, so res judicata does not apply. However, the Applicant produced no title or official search; adverse possession cannot be asserted against an unascertained registered title, so the Giella test fails at the first hurdle.
Legal principles established
#- The Insolvency Act does not apply to co-operative societies under liquidation; leave to sue a liquidator of a co-operative society need not be sought under the Insolvency Act
- Adverse possession can only be claimed against an ascertainable registered title; without proof of the registered owner there can be no prima facie case of adverse possession
Court orders
#- 1.The Motion dated 10th June, 2025 is dismissed
- 2.Costs of the application awarded to the Respondents
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act; Article 48 and 50(1) of the Constitution; Section 66 of the Co-operative Societies Act; Section 432(2) of the Insolvency Act invoked by the Applicant
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna (Suing as the personal & legal representative/administrator of the Estate of the Late Monica Wanjiku Thuo - Deceased) v Ng'undu Farmers Co-operative Society Limited (In Liquidation) & 2 others (Environment and Land Miscellaneous Case E170 of 2025) [2025] KEELC 8301 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated 10th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8301/eng@2025-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.