Florence Wambua alias Florence Kavata Mwindi (suing as the personal representative of the estate of Muindi Samuel) & Another v Katheka Kai Farmers Co-operative Society Ltd & 2 Others

Civil Suit No. E40 of 2023 between Florence Wambua & Another versus Katheka Kai Farmers Co-operative Society Ltd & 2 Others] 1. To help understand the impugned ruling and the appeal, it is important to clarify the subject matter of the dispute that was originally before the trial court and is now before this court. 2. From the plaint dated 25 May 2023, the appellants contended that they purchased plot no. 5/364 Kathekai (364), which had since changed hands among themselves from the original allotee, Kalekye Nzuma (Kalekeye), who was member no. 121 of the 1st respondent, a Co-operative Society registered under the Co-operatives Act. Nonetheless, ignoring these transactions, the 1st respondent amended its list of members and replaced Kalekye’s name with that of Agnes Wayua Nzuma (Agnes). 364 had allegedly been fraudulently sold by the 1st respondent to the 2nd respondent, who later sold it to the 3rd respondent. They pleaded malice and fraud and sought several reliefs from the trial court. 3. Upon being served with the pleadings, the 2nd and 3rd respondents filed a statement of defence and counterclaim dated 2 October 2023, denying the appellants’ allegations and putting them to strict proof. They asserted that Agnes owned 364 and a member no. 158 of the 1st respondent, whose membership devolved to the 2nd respondent pursuant to a ELCLA EO69/2024 JG 2

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court grant, which the 2nd respondent subsequently sold to the 3rd respondent. They pleaded illegalities against the appellants, denied the court’s jurisdiction by invoking Section 76(1) of the Co-operative Societies Act, and sought relief from the trial court. A reply to the defence and defence to counterclaim was filed dated 5 March 2024. 4. Subsequently, the 2nd and 3rd respondents filed a notice of preliminary objection (PO) dated 12 June 2024, in which they raised the following points of law: a) The 1st defendant herein is a duly registered co-operative society. b) The suit offends section 76(2) of the Cooperative Societies Act, cap 490 of the laws of Kenya and thus this court lacks jurisdiction to hear and determine this suit. c) The suit is filed contrary to Section 7 of the Civil Procedure Act and therefore the Honourable Court lacks jurisdiction to grant the orders prayed for. d) In any case, the suit is bad in law, vexatious and an abuse of the court process. 5. The PO was canvassed by written submissions and upon hearing both parties, the learned trial magistrate in the ELCLA EO69/2024 JG 3

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impugned ruling upheld the PO and dismissed the appellants’ entire suit with costs. 6. This decision was not well received by the appellants, who exercised their right to appeal by submitting their memorandum of appeal dated 15 November 2024, wherein they articulated four grounds of appeal, where they stated that the learned trial magistrate erred in law and fact by inter alia:a) Dismissing the appellants' suit on the basis of a PO that did not meet the threshold for a preliminary objection. b) Dismissing the appellants' suit on the basis of a PO that required the respondents to prove facts. c) Finding that the suit was res judicata without looking into the material facts or calling for pleadings of the previous matter. d) THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the appellants' submissions. 7. However, it is apparent from the submissions dated 7 November 2025, filed by the appellants' counsel, Ms. R.M. Mutiso & Associates Advocates, that the grounds of appeal were largely overlooked. Instead, they introduced new grounds of appeal, notably whether the learned trial magistrate erred in finding that, under Section 76(1) of the Co-operative ELCLA EO69/2024 JG 4

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Societies Act, the trial court lacked jurisdiction to entertain the suit. 8. The 2nd and 3rd respondents, through their law firm on record, Ms. B.M Mung'ata & Co. Advocates, submissions 2026 dated 27 January filed written aligning with the appellants’ submissions, addressing issues outside the grounds of the appeal. Furthermore, and in agreement with the submissions of the second and 3rd respondents, it is observed that ground (c) of the appeal is misplaced; although it was raised as an issue for determination and canvassed, the impugned ruling did not determine it. It is settled law that new grounds of appeal cannot be introduced in either the memorandum of appeal or submissions (See the Court of Appeal decisions of Kenya Hotels Ltd vs. Oriental Commercial Bank Ltd (Formerly known as The Delphis Bank Limited) [2019] eKLR and Thomas Openda v Peter Martin Ahn [1982] KECA 59 (KLR) ). Therefore, this court finds that these new grounds are inappropriately introduced and will be ignored. 9. In the appeal, the appellants urged this court to set aside and/or quash the impugned ruling and the appellants' suit against the respondents be reinstated and for the matter to be fixed for hearing and determination. ELCLA EO69/2024 JG 5

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10. As this is a first appeal, Section 78 of the Civil Procedure Act authorises this court to make a final decision on a case; to remand the case; to frame issues and refer them for trial; to gather additional evidence or to require that evidence be obtained; or to order a new trial. Therefore, it is expected to re-evaluate and reconsider all the evidence presented before the trial court and to reach its own conclusions. This role of an appellate court was eloquently articulated in Selle & Another v Association Motor Boat Co. Ltd & others (1968) EA 123, as follows: “An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed ELCLA EO69/2024 JG 6

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Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270).” This decision of Selle (Supra) has been cited in several court cases, including Timsales Ltd V Wilson Libuywa [2008] Kehc 460 (KLR). 11. Accordingly, this court has thoroughly examined the memorandum of appeal, the record of appeal, the submissions of both the appellants and the respondents, the pertinent legal provisions, and the legal authorities. Consequently, in the court’s considered opinion, the appeal can be adequately resolved by assessing the single ground of appeal, namely whether the learned trial magistrate erred in law and fact in failing to find that the PO did not meet the legal threshold. We will now proceed to address this issue. 12. With all due respect to the learned trial magistrate and though she appreciated the relevance of the well-cited decision of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696, which has long established the tests that a PO must satisfy, she totally failed to test the established principles against the PO. Therefore, it is vital to reaffirm the relevant principles derived from the landmark case, which articulated that: ELCLA EO69/2024 JG 7

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“a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 13. In affirming Mukisa Biscuit (Supra), the Supreme Court of Kenya in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 others [2015] KESC 23 (KLR) emphasised the following on the threshold of a PO: “Thus a preliminary objection may only be raised on a “pure question of law”. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.” ELCLA EO69/2024 JG 8

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14. Thus, based on these principles, when addressing this issue, this court will re-look at the record, inquire whether the points of law are clear; whether the facts are settled and correct; whether they do not necessitate further ascertainment; and whether the court is not being asked to exercise its prudent discretion. Accordingly, having considered the PO that questioned the court's jurisdiction, this court finds that it raised a pure question of law. However, even if a juridical question was raised, the trial court had to consider if it raised matters of fact, which it did not. In the binding Supreme Court decision of Charo v Mwashetani & 3 others [2014] KESC 5 (KLR), the court held that even if a PO raises a matter of jurisdiction, the factual aspects it raises must be interrogated: “55.The clear point of law raised is whether the Court has jurisdiction to entertain an application that springs from a matter filed outside the 28 days for filling an election petition. A negative answer to that question has been returned by this Court in several cases: the Mary Wambui case; the Lisamula case; and in Lemanken Aramat v. Harun Meitamei Lempanka & Two Others [2014]eKLR. It is evident that a question as to whether a Court has jurisdiction to determine an appeal filed outside the 28 days’ ELCLA EO69/2024 JG 9

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time-frame, is a “pure question of law”, and falls within the principle in the Mukisa Biscuits case. 56.The remaining question is whether the set of facts presented before this Court is disputed.” 15. The pleadings of the parties were summarised earlier by this court. It is obvious that the PO, which contained factual matters relating to the registration of the 1st respondent’s members, the allocation of plots, purchases thereof and the transfers, was contested, calling for proof or the adducing of evidence for its authentication either by filing a formal application questioning the court’s jurisdiction or by canvassing the issue during trial, but not by means of a PO. Therefore, this Court finds that the PO did not meet the legal threshold and finds the appeal is merited. 16. Ultimately, for the reasons stated above, the appeal is allowed with costs to the appellants. The trial court's ruling dated 25 October 2025 is hereby set aside and replaced with an order dismissing the preliminary objection dated 12 June 2024, with costs, subject to the outcome of the suit. Judgment accordingly. Delivered and Dated at Machakos this 6th day of October, 2026. ELCLA EO69/2024 JG 10

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HON. A. Y. KOROSS JUDGE 06.10.2026 Judgment delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Ms Kanja Court Assistant. Mr. Mutiso for the appellant. Mr. Muema for 2nd and 3rd respondent. ELCLA EO69/2024 JG 11

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