[2014] KEHC 1858 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 384 OF 2011

JOYCE KAMENE KISWIALIAS

KAMENE KESWII...........................................1ST PLAINTIFF/APPLICANT

MUSYOKI KISWII(SUING AS THE LEGAL REPRESENTATIVES OF THE ESTATE OFKISWII) KWITHONGA…. ………………………..RESPONDENT

VERSUS

ALICE KAMENE NZOMO……………….. 1ST DEFENDANT/RESPONDENT

KONZA RANCHING AND FARMING CO-OPERATIVE SOCIETY LIMITED……………………………………..2ND DEFENDANT/RESPONDENT

RULING

On the 13th December, 2011 the applicant filed an application (that was later amended, orally, before Dulu, J) pursuant to the provisions of Order 51 rule 1 and Order 40 rule 1 and 2 of the Civil Procedures Rules and Section 3A of the Civil Procedure Act seeking orders as follows:-

That the 2nd defendant be restrained from conducting any balloting for allotment of commercial plots or any other plots in respect of membership No. 869 pending hearing and determination of this suit.

That the respondents be restrained from interfering, selling, transferring, disposing and /or dealing in any way with any plots or other properties allocated to the 1st respondent by virtue of membership No. 868 pending hearing and determination of the suit

That the 2nd respondent be restrained from selling disposing, alienating and/or transferring the two(2) acres allocated to her by the 1st defendant and or any shares or Membership No. 868 pending the hearing and determination of the suit.

That all benefits accruing in respect of membership No. 868 be vested in the applicants pending the hearing and determination of the suit.

The application is based on grounds that the share membership number 868(hereinafter the membership) was transferred from its original member Kiswii Kwithonga (deceased) to the 1st defendant and that all benefits including dividends, plots and land allocations accruing from the said share No. 868 are not received by the estate of the deceased; secondly that the 2nd defendant is about to conduct balloting and allocation of commercial plots to its members at its Konza Ranch and the applicants cannot ballot on behalf of the estate as the membership shares has been illegally transferred to the 1st defendant .

The application is supported by an affidavit deponed by Joyce Kamene Kiswii the 1st applicant on her behalf and that of the 2nd applicant, legal representatives of the estate of Kiswiii Kwithonga who died in 1972; having obtained Letters of Administration in the year 1992. She states that in the year 1978 the 2nd respondent allocated each of its members ten (10) acres of land. Kiswii Kwithonga was allocated Plot No. 504 being his share for ten (10) acres. His family members having been in possession of other parcels of land decided to dispose the plot No. 504 measuring ten (10) acres in order to realize funds to expand on the sub-division of the land.

In 1995, a clan elder, Kiminza Kitiseintroduced Charles Kyalo Mawili alias Kalima as a buyer. They verbally agreed on a purchase price of Kshs. 60,000/= which was paid in instalments.

Later on they leant that in 1985 the deceased’s membership had been transferred to the 2nd respondent. The transfer of share No. 868 was done fraudulently and illegally, having been executed through criminal conspiracy between respondents. As a result of the fraud the estate of the deceased has been deprived of dividends.

In a replying affidavit, the 1st respondent deponed that the 1st applicant sold and transferred to her ten (10) acres of Land with share membership No. 868. The 2nd respondent approved the transfer. The Chief and the 1st applicant’s brother-in-law, Philip Mutungi were witnesses to the transaction at the Management Farm Committee in a meeting of 27th August, 1987. The 1st applicant having surrendered the membership card for share No. 868, she (1st respondent) was issued with a membership card.

In 2011, she was issued with a share certificate dated 31st March, 2006. The 2nd respondent has agreed to transfer the ten (10) acres to her.

In a supplementary affidavit sworn by the 1st applicant she deponed that she never executed the transfer as they had not obtained letters of administration. She only discovered the fraudulent acquisition her husband’s shares after making numerous visits to the 2nd respondent after the announcement of the intended allotment of the land.

On the 2nd March, 2012, the 1st defendant filed a notice of Preliminary objection on the grounds that this court lacks jurisdiction to entertain the matter.

All parties agreed to dispose off the matter by way of written submissions which I have duly taken into consideration.

It is important to first deal with the issue – whether this court has jurisdiction to preside over the instant case.

It is argued by the applicants that this court is seized of jurisdiction to deal with the case because it is a declaration suit which can be adjudicated upon by the High Court. The basis being that the High Court, according to Article 165(3) of the Constitution has unlimited original jurisdiction in Civil matters. They also alluded to Section 159(2)(d) of the Constitutionthat provides that justice shall be administered without undue technicalities.

Issues of technicalities cannot override the question of jurisdiction. A court can only preside over a matter if it is seized of jurisdiction thereof. In the case of Kakuta Maimai Hamisi versus Peris Pesi Tobiko & 2 Others [2013]eKLR the court of Appeal had this to say:-

“We do not consider Article 159(2) (d) of the Constitution to be a panacea nay a general whitewash that cures and mends all ills, misdeeds and defaults of litigation. The issue of jurisdiction being paramount was also stated in the case of the Owners of the Motor Vessel Lilian ‘s’ versus Caltex Kenya Ltd[1989] KLR 1-Nyarangi,J.A. held that:-

“I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. 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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority”.

The subject matter of this case is shares and membership of Konza Ranching Farming Co-operative Society. There is a dispute as to whether shares that belonged to Kiswii Kwithonga, now deceased were transferred to the 1st respondent by the 2nd respondent.

The cooperative society’s Act provides for such an eventuality. Section 76 of the Act Provides:-

“(1) if any dispute concerning the business of Co-operative Society arises:-

among members, past members and persons claiming through members, past members and deceased members; or

Between members, past members or deceased members, and the society, its Committee or any officer of the society; orshall be referred to the Tribunal.

(2) A dispute for the purposes 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 persons representative of a deceased member of any debt or demand due from a co-operative society, whether such debt or demand is admitted or not”.

Section 39 of the Act on the other hand provides for transfer of a share or interest of a deceased member, It states :-

“i. on the death of a member, a co-operative society may transfer the share or interest of the deceased member to:

the person nominated in accordance with this Act and any rules made thereunder, or

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

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 or the society.

Provide that:-

in the case of a cooperative society with unlimited liability, such nominee or personal representative, as the case may be, may require the society to pay him the value of the share or interest of the deceased member ascertained in the manner mentioned in this subsection, or

In the case of a cooperative society with limited liability, the society shall transfer the share or interest of the deceased member to such nominee or personal representative, as the case may be, being qualified in accordance with this Act or any rules made thereunder or the by-laws of such society for membership of the society, or on his application within one month of the death, to any person specified in the application, who is so qualified.

A co-operative society shall pay all other moneys due to the deceased member from the society to such nominee of personal representative as the case may be.

All transfers and payments made by a cooperative society in accordance with this section shall be valid and effectual against any demand made upon the society by any other person”.

Transfer of shares by the society would therefore be in accordance with the law. Transfer of the shares would therefore not be subjected to the Probate and Administration Procedure. The committee would be mandated to determine who the personal representative of the deceased is and allocate them membership or shares of the deceased.

Any dispute arising therefrom would automatically fall under Section 76 of the Act.

In the premises the forum to hear the dispute would be the cooperative tribunal. The tribunal has the power to hear dispute among members, persons claiming through the member, living or deceased and the society or its committee. The tribunal would be seized of jurisdiction to even hear an interlocutory application.

The High Court as clearly stipulated by the Act has an appellate jurisdiction over the tribunal. In exercise of its powers it can confirm the order of the tribunal, set it aside or even vary it.

In the premises I do find and hold that this court has no original jurisdiction to hear the matter. Consequently, the order sought cannot be granted.

Each party shall bear their own costs.

It so ordered.

DATED, SIGNED and DELIVEREDat MACHAKOS this 8THday of OCTOBER 2014.

L.N. MUTENDE

JUDGE