REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT  MAKUENI

ELC CASE NO.  72 OF 2018

MWEU NDAKA NZUMA   (Legal  representative of the estate of                    

NDAKA NZUMA (Deceased) ..........................................................PLAINTIFF

VERSUS

AGNES MWELU MUOKI                                                                                      

NATHAN MAKUNDI MUOKI (Legal representatives of the                             

Estate of PETER MUOKI NDAKA (Deceased).........................DEFENDANTS

RULING

1) What  is before this  court for ruling is the Defendants’ notice of preliminary objection dated  25^th May, 2017 and filed in court on even date. The Defendants contend that;

1. That  the entire suit offends the mandatory  provisions of the law in particular Section  76 of the Co-operative Society’s Act.

2. That the honourable court has no jurisdiction to hear and determine this suit in view of the provisions of the Co-operative Societies Act Rule, and  the registered by–laws of the society. 

3. That the suit does not fall within the purview of the E.L.C. 

4. That the orders sought cannot be against the 1^st and 2^nd Defendants. 

5. That the  entire suit is defective  and an abuse of the court  process and the same should be dismissed with costs.

2) Mr. Orina for the Defendants condensed the five grounds in the notice of preliminary objection into one, namely jurisdiction. He submitted that the issue before this court involves share membership in Konzo Co-operative Society Ranching and Farming  Co-operative  Societies   Ltd.  He pointed  out under Section  76 of the Co-operative Societies Act, it is provided that if any dispute concerning the business  of a co-operative society arises  among  members, past members and persons claiming  through  members, past members  and deceased members, it shall be referred to the  Tribunal.  The counsel submitted that the rightful court to dispose off the dispute of share membership is the Co-operative  Tribunal and not this court. The counsel cited the case of Charles Keragita  Arwenya V Nyakoe Farmers Co-operative Society Ltd [2016]e KLR where J.R Karanjah, J stated thus; 

“S. 76 of the Co-operative Societies Act provides that any dispute concerning the business of a Co-operative Society and arising among members of a society or between members and the society or its committee or any officer of the society shall be referred to the Co-operative Tribunal and under S.81 (1) of the Act, any party aggrieved by the order of the tribunal may appeal to the High Court. It would  therefore appear that S.76 of the Act ousts the jurisdiction of the High Court in exercising original  jurisdiction in disputes involving Co-operative Societies and its members.  The only jurisdiction open to the High Court in such matter would be the appellate jurisdiction only.”

3) Mr. Orina  further  cited the case of Speaker of the National assemlly v James Njenga Karume [1992] eKLR where the court of Appeal states thus;

“… there is considerable merit in the submission that where there is a clear procedure for the  redress of any particular grievance prescribed  by the Constitution or an Act of Parliament, that  procedure should strictly be followed.”

4) Arising   from the  above, the counsel  submitted that the legislative intended  the Co-operative  Tribunal to be the first level of  resolution of disputes arising from  Co-operative Societies  with  appeal lying  in the High Court. The  counsel pointed  out of parties were  permitted to lodge  claims covered by Section 76 of the Co-operative Societies Act to the High Court, this  will deny them their day in the   High Court at the appellale level and submitted that this position was upheld in the case of Bernard Mugo & others V Kagaani South Farmer Co-operative Society & 4 others [2015] eKLR where F, Muchemi, J stated thus:-

“ it is  imperative to note that decisions of the Co-operatives   Tribunal are appealable  to the High Court  which is the final court on that category.  Matters which the court has jurisdiction other than those included in the act may be heard in the High Court and follow the laid down process for appeal.  The need to seek justice in the right forum cannot therefore be  overemphasized.”

5) The counsel urged  the court to refer this matter to the Co-operative Tribunal to enable  parties  resolve  their dispute in the right forum.

6) On the  other hand, the counsel for the Plaintiff submitted that the Plaintiff  prays for declaratory order and nullification of a title deed issued by the  ministry of lands for want of letters of administration. The counsel was of the view that given those circumstances, the Plaintiff’s claim does not fall under Section 76 of the Co-operative Societies Act nor it is envisaged  under Section 76(2) of   the same Act.  The counsel went on to submit that the court is fully seized with original jurisdiction to determine the dispute herein.   The counsel urged the court to dismiss the preliminary objection with costs.

7) I have read the submissions that were filed by the counsel on record for the parties herein.  Since the notice of preliminary objection revolves around the issue of jurisdiction, it is important to look at Section 76(1) of the Co-operative Societies Act [Rev 2012] Chapter 486 of the Laws of Kenya.

It provides as follows:-

Section 76(1) 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.

8) I have looked at the pleadings herein.  It is clear the Plaintiff  herein  seeks a declaration that transfer of membership number 391 Konza Ranching  and Farming  Co-operative Society Limited through  which certain  parcels of land was made from the estate of Ndaka Nzuma (deceased) to Peter Muoki Ndaka(deceased) is null and  void. It is therefore  clear to  me that the Plaintiff  herein claims  share that was held  by a deceased  person and which share he alleges that it was unprocedurally transferred to Peter Muoki Ndaka (deceased). The dispute  herein therefore clearly falls within the  ambit of Section  76 (1) (a) of the  Co-operatives Societies Act aforementioned.

9) It is  clear  that  there is a  procedure  that offers  redress the grievance for that  Plaintiff herein has raised.  He must follow that laid down procedure (see the speaker of the National Assembly V James Njenga Karume[1992] eKLR.)

10)    The Plaintiff can only approach this court by way of an appeal from the decision of the Co-operative Tribunal (see Bernard Mugo & Others Kaagari South Farmers Co-operative Society & 4 others [2015] eKLR.)

11)    In the circumstances, my finding is that the preliminary objection has merits. I, therefore, uphold it and proceed to struck out the Plaintiff’s suit with costs to the Defendants.

SIGNED, DATED AND DELIVERED AT MAKUENI THIS 21^ST DAY OF JANUARY, 2019.

MBOGO C.G,

JUDGE

IN THE PRESENCE OF;

Mr. Orina  Riech for the Defendant

Mr.  Nagwere holding brief for Mr. Kamolo for the Plaintiff. 

Mr. Kwemboi Court Assistant

MBOGO C.G, JUDGE

21/1/2019