https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/261

Adundo & 4 others v Commissioner of Cooperative Developmemt & another (Tribunal Case E391 of 2026) [2026] KECOPT 261 (KLR) (Civ) (17 June 2026) (Ruling) Neutral citation: [2026] KECOPT 261 (KLR) Republic of Kenya In the Cooperative Tribunal Civil Tribunal Case E391 of 2026 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 17, 2026 Between Lydiah Akinyi Adundo 1st Petitioner Catherine Muriithi 2nd Petitioner Sheila Musungu Masinde 3rd Petitioner Kombo Hassan Ziro 4th Petitioner Washington Wanga Ogolla 5th Petitioner and Commissioner of Cooperative Developmemt Respondent and KImisitu Sacco Limited Interested Party Ruling 1.This ruling dispenses with the Notice of Preliminary Objection dated 5th June 2026. In the Notice of Preliminary Objection, the Respondents raise an issue with the jurisdiction of this Tribunal on the following grounds:a.That the Petitioner’s case offends the mandatory provision of the law in respect of disputes under Section 76 of the Co-operative Act.b.That the Application and Petition dated 12/5/2026 have been filed in the wrong court because the Honourable Tribunal lacks jurisdiction to determine the questions raised therein. 2.The Preliminary Objection was canvased by way of Written Submissions and both parties filed their submissions. 3.In the Applicant/Respondent’s submissions dated 5/6/2026, they opined that this Tribunal lacks jurisdiction by virtue of section 76 of the Cooperative Societies Act. That the Tribunal has no jurisdiction to interrogate an Administrative Action. They submit that the Respondent’s circular dated 18th June 2025 was issued in the exercise of an administrative action by the Commissioner for Cooperatives, pursuant to Section 3 of the Co-operative Societies Act. They argue that although the jurisdiction of the Cooperative Tribunal under Section 76 of the Co-operative Societies Act is wide and encompasses most of the disputes relating to cooperative societies, this Tribunal has no jurisdiction to interrogate an administrative action such as the issuance of a circular by the Respondent, and that the best place for challenging the circular is the High Court under Judicial Review. They also submit that the question of determining whether a fundamental right under the Bill of Rights is threatened lies with the High Court as provided or under Article 165 of the Constitution of Kenya and not at the Co-operative Tribunal. 4.The Petitioners, in their submissions, opined that the dispute squarely lies with the Cooperative Tribunal pursuant to section 76 (2)(c) of the Co-operative Societies Act which vests jurisdiction on the Tribunal to hear and determine a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the authority. Analysis 5.This Tribunal has considered the Application and the Submissions of the parties, Applicant’s written submissions dated 5/6/2026 and Petitioner’s written submissions dated 9/6/2026. The question that this Tribunal has to answer is whether the Preliminary Objection is merited and whether this court has no jurisdiction to handle that matter. 6.The purpose and character of a Preliminary Objection was well discussed by the Court of Appeal in the case of Mukisa Biscuits Manufacturing Co Ltd vs West End Distributors Ltd (1969) EA 696. The court laid down the principles as to what constitutes a Preliminary Objection. A Preliminary Objection to be valid must be on a point of law and must be founded on facts that are not in dispute. If evidence would require to be adduced to establish the facts, then a Preliminary Objection would not be sustainable. 7.In the Notice of Preliminary Objection, the Respondents raise an objection based on jurisdiction. Jurisdiction is a legal question, conferred either by the Constitution or statute. The question, therefore, is whether the same is merited. 8.It is trite law that jurisdiction flows from either a Statute or the Constitution, and no court assumes jurisdiction on its own. In the case of Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd (1989) eKLR, the Court held that;“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction… Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 9.The Jurisdiction of this Tribunal is drawn from the Cooperative Societies Act, at section 76(1) which provides as follows;If any dispute concerning the business of the Cooperative society arises:a.Among members, past members and persons claiming through members, past members and deceased orb.Between members, past members or deceased members and the society, its committee or any Officer of the society.c.Between the society and any other Cooperative Society. 10.Therefore, to answer this question we have to ask ourselves whether the dispute subject to this Claim is between parties contemplated under Section 76(1) above and whether the disputes falls under Section 76 (2) Co-operative Societies Act. 11.According to the Petition dated 11th May 2026, the Petitioners’ prayer is for this Tribunal to issue a direction nullifying the commissioner’s directive through circular No. CCD/2025/001, among other prayers. The face of the of the Petition also clearly indicates that that this matter is brought under Section 4 of the Fair Administrative Actions Act. The Claimant also in their submissions, did not dispute that this is a Judicial Review application. It was their submission, that despite being a Judicial Review application, this Tribunal has jurisdiction by virtue of Section 76(2)(c) of the Co-operative Societies Act. 12.Having established that the Application is indeed a judicial Review Application, the question we now have to answer is whether this Tribunal has jurisdiction to handle the same. Section 9 of the Fair Administrative Action Act on the ‘Procedure for Judicial Review’ provides that:Procedure for judicial review.1.Subject to subsection (2), a person who is aggrieved by an administrative action may, without unreasonable delay, apply for judicial review of any administrative action to the High Court or to a subordinate court upon which original jurisdiction is conferred pursuant to Article 22(3) of the Constitution. (Emphasis ours).This not being a High Court, we find nothing in the Co-operative Societies Act conferring jurisdiction to this Tribunal to handle Judicial Review. Section 76(2) (c) that is referred to by the Petitioner concerns the grant or revocation of licence the Authority, which is the Sacco Society Regulatory Authority (SASRA) and not the Commissioner for Cooperatives. 13.In the upshot of the foregoing, we find that the Preliminary Objection dated 5/6/2026 is merited. This Tribunal lacks jurisdiction to handle this matter and we hereby down our tools. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 17TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 17/6/2026Hon. Beatrice Sawe Member Signed 17/6/2026Hon. Fridah Lotuiya Member Signed 17/6/2026Hon. Michael Chesikaw Member Signed 17/6/2026Hon. P. Aol Member Signed 17/6/2026Court Assistant - MutaiMr. Odeto advocate for the ApplicantMs. Adam advocate for the RespondentMs. Munyasia advocate for the Interested PartyHon. J. Mwatsama Ag. Chairperson Signed 17/6/2026