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ELCStruck OutNot stated in judgment· [2026] KEELC 2789 (KLR)

Mage & another v Verona Huruma Sacco (Environment and Land Case Civil Suit E099 of 2025) [2026] KEELC 2789 (KLR)

Environment and Land Court
7 May 2026
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land dispute suit because the plaintiffs, as co-operative society members, should have taken it to the Co-operative Tribunal.

What this practically means

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Executive summary

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The defendant filed a notice of preliminary objection dated 15th September 2025 contending that the plaintiffs' suit, which sought compensation for breach of contractual obligations over House No T18 on LR No Donyo Sabuk/Komarock/Block/33351 following a letter of offer dated 31st August 2016, was incompetent on two grounds: that such disputes between members of a co-operative society must first go to the Co-operative Tribunal under section 76 of the Co-operative Societies Act, and that the suit violated section 3(3) of the Law of Contract Act as it was not founded on a written contract. The plaintiffs replied that the tribunal lacked jurisdiction over third-party contract disputes concerning land and relied on the defendants' conduct and the doctrine of partial performance. After written submissions, the court framed a single issue: whether the preliminary objection was merited. Relying on Owners of the Motor Vessel 'Lilian S' v Caltex Oil, the court reiterated that jurisdiction is everything and a court without it must down its tools. Noting the plaintiffs admitted membership of the defendant society and sought compensation for breach, the court held the dispute fell within section 76 of the Co-operative Societies Act. Applying East African Fine Spinners v Bedi Investments and Chinnock v The Marchioness of Ely, it held the letter of offer was expressly subject to contract, no formal agreement was executed, hence no binding contract existed to found a suit, land sale contracts requiring compliance with section 3(3). The court struck out the entire suit for lack of jurisdiction and awarded costs to the respondent.

Key legal issues

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01

Jurisdiction - whether the dispute is referable to the Co-operative Tribunal

Holding

The suit is struck out for lack of jurisdiction; the dispute falls within section 76 of the Co-operative Societies Act.

Reasoning

The plaintiffs admitted being members of the defendant society, and their claim for compensation for breach of contractual obligations concerning the suit property is a dispute concerning the business of a co-operative society between members and the society. Such disputes must be referred to the Co-operative Tribunal under section 76. The court cannot adjudicate on breach of a contract that does not legally exist, and the tribunal's statutory jurisdiction ousts the court's.

p. 4
02

Whether the letter of offer created a binding contract under section 3(3) of the Law of Contract Act

Holding

The letter of offer was expressly subject to contract; since no formal agreement was executed, no binding contract arose and no suit for breach can be founded on it.

Reasoning

Applying Chinnock v The Marchioness of Ely as adopted in East African Fine Spinners v Bedi Investments, where a proposal or offer is assented to subject to a provision for a formal contract, the stipulation is a term of the assent and there is no agreement independent of it. Additionally, contracts for the disposition of an interest in land must be in writing, signed by all parties and attested under section 3(3) of the Law of Contract Act, which was not satisfied here.

p. 4
03

Threshold of a valid preliminary objection

Holding

The objection, if successful, is capable of finally disposing of the whole matter and thus attains the threshold of a pure point of law.

Reasoning

Because jurisdiction goes to the root of the court's power to make any step in the proceedings, an objection founded on lack of jurisdiction is a pure preliminary point of law capable of disposing of the entire suit without the need to delve into the evidential merits of the dispute.

p. 2

Legal principles established

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  • A court without jurisdiction must down its tools; jurisdiction is conferred by the Constitution or statute and cannot be assumed
  • A letter of offer expressly stated to be subject to a formal contract is not binding where that formal contract never crystallises
  • A suit on a contract for the disposition of an interest in land must comply with section 3(3) of the Law of Contract Act

Court orders

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  1. 1.The notice of Preliminary Objection dated 15th September 2025 is merited and the entire suit is struck out for lack of jurisdiction
  2. 2.Costs be awarded to the respondent
Jurisdiction invoked
Jurisdiction of the Environment and Land Court; Section 76 of the Co-operative Societies Act (CAP 490); Section 3(3) of the Law of Contract Act (Cap 23)

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, "Mage & another v Verona Huruma Sacco (Environment and Land Case Civil Suit E099 of 2025) [2026] KEELC 2789 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2789/eng@2026-05-07

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