[2011] KEHC 4312 (KLR)
The court held that the dispute between the plaintiff and the defendant, both being a member and a cooperative society respectively, concerns the business of the society and falls within the jurisdiction of the Cooperative Tribunal as provided under Section 76(1)(b) of the Cooperative Societies Act. The court found...
Source-derived case information.
- Citation
- [2011] KEHC 4312 (KLR)
- Parties
- Plaintiff: Chege Kabita; Defendant: Kariobangi Housing & Settlement Cooperative Society
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 587 of 2010
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; suit struck out for want of jurisdiction
- Judges
- GG Okwengu
- Legal Topics
- Cooperative Societies Jurisdiction, Land Disputes, Preliminary Objection, Injunctions, Forum Selection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chege Kabita
Plaintiff
Kariobangi Housing & Settlement Cooperative Society
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear a dispute between a member and a cooperative society concerning land owned by the society.
- 2 Whether the dispute ought to have been referred to the Cooperative Tribunal under Section 76 of the Cooperative Societies Act.
- 3 Whether the Cooperative Tribunal has the power to grant injunctions as sought by the plaintiff.
Ratio Decidendi
The court held that the dispute between the plaintiff and the defendant, both being a member and a cooperative society respectively, concerns the business of the society and falls within the jurisdiction of the Cooperative Tribunal as provided under Section 76(1)(b) of the Cooperative Societies Act. The court found that the definition of 'dispute' in Section 76(2) is not exhaustive and includes disputes concerning land if they arise from the relationship between a member and the society. The court further held that the Cooperative Tribunal has the power to grant injunctions, both temporary and substantive, under Sections 79(1)(a) and 80(4) of the Act. Consequently, the High Court lacks...
Court Disposition
preliminary objection upheld; suit struck out for want of jurisdiction
Orders
- The plaint and chamber summons dated 1st December, 2010 are struck out for want of jurisdiction.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.587 OF 2010
CHEGE KABITA......................................................................................................................................PLAINTIFF
VERSUS
KARIOBANGI HOUSING & SETTLEMENTCOOPERATIVE SOCIETY..........................................DEFENDANT
R U L I N G
1. The defendant has raised a preliminary objection to the plaintiff’s suit and chamber summons application dated 1st December, 2010 on the ground that this court has no jurisdiction to hear and determine the application, and the suit upon which the application is hinged. It is contended that the defendant is a cooperative society duly registered under the Cooperatives Societies Act Cap 490, and the plaintiff is a member of the defendant society. It is argued that the plaintiff’s claim is based on his position as a member of the defendant society. It is submitted that the dispute between the plaintiff and the defendant ought to have been referred to the Cooperative Tribunal established under Cap 490, as it falls squarely within the provisions of Section 76(1)(b) of the Cooperative Societies Act. The court was therefore urged to strike out the suit for want of jurisdiction.
2. For the plaintiff it was submitted that Section 76(2)(b) of Cap 490 which defines a dispute for the purposes of the Cooperative Societies Act, does not cover a dispute involving land. It is maintained that the land subject of the dispute between the plaintiff and the defendant is governed by the Registration of Titles Act (Cap 281) under which the High Court has jurisdiction to deal with disputes involving land.
3. It is further submitted that the Cooperative Tribunal has no powers to issue an injunction which is the relief sought by the plaintiff. It is argued that assuming the High Court has no jurisdiction to hear the matter, it has powers under Section 18 of the Civil Procedure Act (Cap 21) to transfer any proceedings before it to any court, and therefore it can transfer the matter to the Cooperative Tribunal. Relying on Oraro vs Mbajah [2005] 1 KLR 141, the court was urged to dismiss the preliminary objection as it was raising factual issues instead of points of law.
4. I have given due consideration to the objection and the submissions made. I find that the preliminary objection is not anchored on factual details, but it is anchored on a point of law which is the issue of jurisdiction. From the plaint filed on 2nd December, 2010, the plaintiff’s suit is hinged on his relationship with the defendant as a member of the defendant’s society. The dispute concerns land being plot No.192 on LR No.220/4 which the plaintiff claims to be entitled to as a member of the defendant society, which land is also being claimed by the defendant. In my view the dispute concerns the business of the defendant as a Housing and Settlement Society and falls within Section 76(1)(b) of Cap 490. I find that Section 76(2) of Cap 490 which provides the definition of a dispute, is not exhaustive as it uses the word “includes”.
5. As regards the argument that the Cooperative Tribunal has no powers to issue orders of injunction, I find that Section 79(1)(a) of the Cooperative Societies Act gives general powers to the Cooperatives Tribunal to make such orders as it deems necessary or expedient. Moreover, Section 80(4) expressly provides for jurisdiction to the Chairman of the Cooperative Tribunal to deal with temporary injunctions. In my view, the Tribunal cannot be able to deal with temporary injunctions and not have powers to issue an order of injunction as a substantive relief. I therefore reject the submission that the Tribunal has no powers to issue orders of injunction.
6. I find that the dispute between the plaintiff and defendant ought to have been referred to the Cooperative Tribunal, as jurisdiction in such disputes has been specifically conferred on that Tribunal by the Cooperative Societies Act Cap 490. I reject the submissions that this court should refer the matter to the Tribunal as the plaintiff ought to have commenced his suit in the Tribunal and not in this court.
7. I do therefore uphold the preliminary objection and order the plaint and chamber summons dated 1st December, 2010 to be struck out for want of jurisdiction.
Dated and delivered this 28th day of January, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
Thimba for the plaintiff
Amuga for the defendant
B. Kosgei - Court clerk