Michael Mutunga Maingi v Francis Ndolo Maingi & 3 others

2. Spent 3. That this Court be pleased to include Shares issued under Share No. 5 Komarock Housing Coop Society (hereinafter, “the share”) on the List of Assets of the estate of Paul Maingi Kathukya. 4. That this Court be pleased to issue an order directing the Chairperson Komarock Housing Coop Society Ltd to cancel the names of the Respondents herein as the nominees of the deceased under share No. 5. 5. That this Court be pleased to issue an order directing the Chairperson in 4 above to register Share No. 5 belonging to the deceased, in the names of the Administrators, holding in Trust for themselves and other beneficiaries of the deceased 6. That costs of this application be borne by the Respondents. 3. The application is supported by the Affidavit of Michael Mutunga Maingi, sworn on 26th August 2024 in which he deposed that the Share Number 5 at Komarock Housing Co-Op Society Ltd (hereinafter “the share) is still registered in the name of the deceased and was not included in the succession proceedings as an asset of the estate. 4. He further deposed that the Respondents herein are beneficiaries of the deceased and the nominees under the share. The Respondents have been sharing proceeds emanating from the share to the detriment of other beneficiaries and it is in the interest of justice that the share is included as an asset of the estate, by cancelling the nominees and having the administrators registered instead, to hold in trust for other beneficiaries. 5. He contended that the beneficiaries of the estate are at risk of losing their rightful shares in the said properties if the orders sought are not granted. 6. The Applicant filed a further affidavit dated 4th December 2024 in which he deposed that the Appeal to the Tribunal decision was transferred to the family division of the High Court when it came for direction, and was subsequently withdrawn to have the matter handled in the parent file. 7. He further deposed that this Court had restricted dealings under the share pending an application to include the Applicant as a co-administrator. He produced the Court Order dated 12th September 2019 in evidence, which restricted the dealing in the share pending determination of the application. The Respondent’s case 8. The application is opposed vide the Grounds of Opposition dated 24th September 2024, in which the Respondents aver that the issues canvassed in the application are sub judice as they are being considered in Appellate proceedings in Nairobi HCCA No. E449 of 2024 which was instituted before the current matter, and are between the same parties. 9. The Notice of Preliminary Objection dated 24th September 2024 is based on the grounds that the issues canvassed in the Application are sub judice under Section 6 of the Civil Procedure Act. 10. The application is also opposed vide the Replying Affidavit sworn by Francis Ndolo Maingi on 2nd December 2024. He contested the Court’s jurisdiction to determine the application, based on Section 77 of the Co-operative Societies Act which mandates the Co-operative Tribunal to determine disputes concerning shares. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16411/eng@2025-09-18 2

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11. He further contended that the Interested Party had been joined to these proceedings without leave of Court. 12. He deposed that the issue of the share had already been determined by Court in two rulings dated 8th April 2020 and 9th June 2021 by Hon. Justice Muchelule and the Court is thus Functus Officio and lacks jurisdiction to determine the application. He contended that if dissatisfied, the Applicant should have appealed. 13. He further deposed that the Co-operative society had ofiered family members of shareholders separate shares of Kshs. 50,000 each which he and other family members had purchased and thus became separate members, distinct from the deceased, and those shares therefore could not form part of the deceased’s estate. 14. He also explained that some beneficiaries of the estate had also received the share and sold it to a third party. 15. He deposed that the Applicant had filed another case at the Cooperative Tribunal Number 315/ e107/2021 and the Tribunal had dismissed his claim over the share. He then appealed the decision vide Tribunal Appeal No. E449 of 2024, to which he had filed a Notice of Withdrawal. He contended that allowing the current application would be allowing the Applicant to Appeal through the back door. 16. The Notice of Preliminary Objection dated 25th February 2025 seeks to have the application dismissed on the grounds that it is Res Judicata, having been fully determined vide the Rulings of Court dated 8th April 2020 and 9th June 2021, want of Jurisdiction of this Court and introduction of an Interested Party who is not a beneficiary of the Estate. Determination 17. 18. Having considered the application and Notice of Preliminary Objection before me, the responses and submissions, I find the following issues for determination: a. Whether this Court has jurisdiction to determine the application; b. Whether the application is sub judice; c. Whether the application is Res Judicata; d. Whether the prayers sought ought to be granted. On the question of whether the current application is properly before this court, the Respondents argue that a dispute over the ownership of shares can only be dealt with by a Tribunal in the first instance and not this Court. They base their argument on Section 76 of the Co-operative Societies Act which section provides: “ If any dispute concerning the business of a co-operative society arises: — (a) among members, past members and persons claiming through members, past members and deceased members; or (b) between members, past members or deceased members, and the society, its Committee or any officer of the society; or (c) between the society and any other co-operative Society; it shall be referred to the Tribunal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16411/eng@2025-09-18 3

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(2) A dispute for the purpose of this section shall include— (a) a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or (b) a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not. (c) a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the Authority.” 19. Indeed, the question of ownership of the share is a matter within the purview of the Co-operatives Tribunal. 20. Article 165 of the Constitution of Kenya 2010 provides: “ the High Court shall have- 21. a. unlimited original jurisdiction in criminal and civil matters; b. any other jurisdiction, original or appellate, conferred on it by legislation.” Section 47 of the Law of Succession Act provides that: “ The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.” 22. Neither of the parties refute that the applicant filed a matter at the Tribunal, and when he was aggrieved by the decision, he appealed to the High Court, which advised him to withdraw the matter and have the issue dealt with in the parent file leading to the instant application. The above section clothes this court with wide discretion to hear and determine all disputes relating to the estate of a deceased person. I find that the application is properly before this court. 23. On the question of whether the current application is Sub Judice, Section 6 of the Civil Procedure Act provides that: “ No court shall proceed with the trial of any suit or proceedings in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit or proceeding is pending in the same court or any other court having jurisdiction in Kenya to grant the relief claimed.’’ 24. The Respondents concede that the appeal was withdrawn to allow the issue to be canvassed in the parent file. I find that the application is not sub judice and thus the Preliminary objection is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16411/eng@2025-09-18 4

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25. On the question of whether the application is Res Judicata, I am guided by Section 7 of the Civil Procedure Act which provides that: “ No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court” 26. I have perused the Ruling delivered by Hon. Justice A. O. Muchelule on 8th April 2020, and I find that save for allowing the Applicant to be appointed as a Co-Administrator of the estate, the Court did not make any findings concerning the ownership and registration of the share which is subject of this application. 27. I have also perused the Ruling delivered by Hon. Justice A. O. Muchelule on 9th June 2021 which reviewed the orders of 8th April 2021 in replacing the Administrators of the estate. The ruling also does not address the ownership and registration over the share. 28. In the upshot, I find that the application is not Res Judicata and dismiss the preliminary objection. 29. It is not in dispute between the parties that the share which is subject of the suit is in the name of the Deceased and that the Respondents were appointed by the Deceased as his nominees. 30. Section 39 of the Co-operatives Act is clear on the transfer of interest of deceased members. It provides as follows: “ On the death of a member, a co-operative society may transfer the share or interest of the deceased member to: 31. (a) the person nominated in accordance with this Act and any rules made thereunder; or (b) if there is no person so nominated, such person as may appear to the Committee of the society to be the personal representative of the deceased member; or (c) if either of such persons is not qualified under this Act and any rules made thereunder or the by-laws of such society for membership, such person, specified by the nominee or personal representative, as the case may be, who is so qualified, or may pay to such nominee or personal representative, as the case may be, a sum representing the value of such member's share or interest ascertained in accordance with any rules made under this Act or the by-laws of the society:’ As per the above section, the transfer of an interest of a member in a Co-operative society upon his death has a clear hierarchy. The interest is transferred to the person nominated, and if the deceased has not made any nomination, to the personal representative of the estate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16411/eng@2025-09-18 5

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32. It is trite that shares that are subject to nomination do not form part of the estate of a deceased person for distribution in succession proceedings. I am persuaded by the reasoning in the case of Re Estate of Faith Muita (Deceased) (2016) eKLR where the court held that: “ The only time nominated funds would fall for distribution in accordance with the law of succession is when the nomination has been revoked by either the subsequent marriage of the nominator or by the death of the nominee before that of the nominator. In both cases, there would be no valid nomination and therefore no nominee would be in place to be paid proceeds of the policy. In such cases, the funds would be estate property vesting in the Administrators.” 33. I also agree with the reasoning in the Matter of the Estate of Carolyne Achieng’ Wagah (Deceased) Nairobi High Court Succession Cause No. 1374 of 2004, where the Court stated the law as follows: “ It is the law that funds the subject of a nomination do not form part of the nominators estate, and therefore such funds cannot pass under the will of the deceased or vest in his personal representative. Such funds are not subject to the succession process and should be dealt with in accordance with the law governing nomination. Nominations are statutory, in the sense of them being specifically provided for by a particular statute.” 34. The application does not challenge the way in which the nomination was done, either contrary to law or the rules of the Co-operative society. In the upshot, I find the application herein dated 26th August 2024 lacks merit and I hereby dismiss the same. 35. Costs shall be in the cause. DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF SEPTEMBER, 2025. E.K OGOLLA JUDGE In the presence of: Samba for the Applicant No appearance for the Respondents No appearance for the Interested Parties Gisele Mohamed Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16411/eng@2025-09-18 6

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