Kebenei & another v Unaitas Sacco Society Ltd (Civil Case E035 of 2025) [2026] KEHC 9556 (KLR) (6 July 2026) (Ruling)

Kebenei & another v Unaitas Sacco Society Ltd (Civil Case E035 of 2025) [2026] KEHC 9556 (KLR) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 9556 (KLR) Republic of Kenya In the High Court at Eldoret Civil Case E035 of 2025 RN Nyakundi, J July 6, 2026 Between David Kibiwott Kebenei 1st Plaintiff Mary Wanjiku Gitau 2nd Plaintiff and Unaitas Sacco Society Ltd Defendant Ruling 1.Before this Court is notice of preliminary objection dated 13th day of January 2026.a.That this Honourable Court lacks jurisdiction to hear and determine this matter, as it has no original jurisdiction over disputes between a co-operative society and its members, such jurisdiction being vested in the Co-operative Tribunal pursuant to Section 76(1)(b) of the Co-operative Societies Act.b.That, without prejudice to the foregoing, even assuming the Co-operative Tribunal lacks jurisdiction, this Honourable Court is nonetheless divested of jurisdiction, as disputes relating to land fall within the original and appellate jurisdiction of the Environment and Land Court, established under Article 162(2) of the Constitution and provided by Section 13 of the Environment and Land Court Act.c.That the present suit offends the doctrine of material non-disclosure, as the Claimants having failed to disclose the existence of a previous suit, namely CTC/E024/2025 - David Kibiwott Kebenei & Mary Wanjiku Gitau v Unaitas Sacco Limited, filed before the Co-operative Tribunal at Eldoret, which arose from the same subject matter.d.That the Plaintiffs' suit amounts to an abuse of the process of this Honourable Court, having been instituted despite the existence of a prior suit arising from the same subject matter and in clear disregard of the applicable jurisdictional framework, and ought therefore to be struck out with costs to the Defendant. 2.In support of the ruling of the Court dated 7th January 2026 and the subsequent Notice of Preliminary of Objection, each legal Counsel filed written submissions for or against the contestation. First, learned Counsel Mr. Mitei in his written submission urged that the preliminary objection is misconceived and incompetent based on the following grounds:“It is settled law that a Preliminary Objection must raise a pure point of law and be argued on the assumption that all pleaded facts by the opposing party are correct. Where the classic authority is Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, where the Court held: "A preliminary objection consists of a pure point of law... which, if argued successfully, may dispose of the suit."Any objection requiring ascertainment of facts or exercise of judicial discretion does not qualify as a Preliminary Objection. This principle was reaffirmed in Oraro v Mbaja[2005] eKLR, which held that factual disputes cannot be resolved at the preliminary stage.” 3.He further placed reliance in the following cases: Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others [2019] eKLR, Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna & 5 Others [2017] eKLR, Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, DT Dobie & Co. (Kenya) Ltd v Muchina [1982] KLR 1, Equity Bank Ltd v Bruce Mutie Mutuku t/a Diani Tour & Travel [2016] eKLR, Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR and Republic v IEBC Ex parte NASA [2017] eKLR. 4.In accordance to the learned Counsel’s submissions the defendant’s preliminary objection does not fit the conditions on the threshold of a preliminary objection as known in law. He therefore prayed for the preliminary objection to be dismissed for his entirety. 5.On the other hand, learned Counsel for the defendant strongly urged this Court to comply with the provision of Section 76(1)(b) of the Corporative Society Act so as to struck out the suit for want of jurisdiction. It is against this background that they carry the burden of making a decision as to whether this Court has jurisdiction to entertain the suit filed by the Plaintiffs against the defendant. Decision 6.The doctrine of jurisdiction dictates that a Court must possess the legal authority to hear, determine and render a binding judgement on a case. Without this authority derived from the Constitution or Statute any proceedings are null and void. It cannot be conferred or waived by the parties. The issue of jurisdiction is at the center of any litigation within our Court system. This is what the Supreme Court was addressing in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, where it held, that:“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the first and second Respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.” 7.The case before me is bedeviled by the doctrine of exhaustion. In Kenya the law requires litigants to utilized statutory or internal administrative dispute resolution mechanism before approaching the High Court. For instance, Section 9 of the Fair Administrative Action Act 2015, it is the Courts mandate to promote faster, cheaper and specialized dispute resolution. The guiding principles are very clear from the following case law on the doctrine of exhaustion William Odhiambo Ramogi & 3 others v Attorney General & 4 others [2020] eKLR: A 5-judge bench extensively outlined the parameters and rationale of the exhaustion doctrine, affirming that administrative remedies must be actively pursued first to respect agency mandates and Article 159 of the Constitution. United Millers Limited v Kenya Bureau of Standards (ACA Petition E027 of 2019): The High Court (Mativo J) dismissed a judicial review application for bypassing the Anti-Counterfeit Authority and Standards Tribunal, cementing the rule that statutory avenues must be exhausted. The judgment can be downloaded via the ACA Court of Appeal Document Chrispine Onyango Odhiambo & Another V. National Police Service & 10 Others [2023]: The High Court struck out a constitutional petition regarding a tender dispute, holding that disputes with well-laid statutory grievance mechanisms (such as the Public Procurement Regulatory Board) must be subjected to those boards first. Read the detailed Oraro & Co. Advocates Consumers Federation of Kenya (COFEK) & 5 others v Kenya [2026] KEHC 2646: The High Court recently reaffirmed that rushing to Court over issues best suited for statutory regulatory bodies violates the exhaustion rule. Review the Kenya Law Source Document Alan E Donovan v Kenya Power and Lighting Company [2019]: This case highlights a major exception to the rule. The High Court allowed the petition to bypass the agency, noting that the exhaustion requirement does not strictly apply when the primary issues verge on core constitutional interpretation or gross human rights violations. Access the Kenya Law Source Document 8.It ought to be remembered that Court cannot even invoke the Doctrine of Inherent Powers to assume jurisdiction in a subject matter or cause of action. Inherent Powers and jurisdiction of the Court is a doctrine which serves as a fallback tool of the Court in its effort to attain justice, especially when the law did not provide for the circumstance(s) before the Court or the intent intention of the Legislature is not clear on the subject matter under consideration or there is a lacuna in the law, etcetera. This situation therefore foists on the Court the duty to exercise its discretion, following the law, from the known to the unknown. The Courts that apply this doctrine are Court manned by human beings with all human fallibilities. When correctly relied upon by the Court, it serves the end of justice but when misapplied, it creates injustice. 9.The dispute as filed originally before this Court was and is premised in the plaint dated 3rd December 2025 which had the following particulars pleaded as follows:a.That the Plaintiffs aver in the year 2019 entered into a loan agreement with the Defendant who advance them loan of Kenya Shillings Seven Million (Kshs.7,000,000/=) to be repaid within a period of Five (5) years.b.The Plaintiffs use their title deed Certificate for SOY/SOY BLOCK 10(NAVILLUS)/1114 measuring approximately Zero Decimal Four Zero (0.40) Hectares as a collateral security for the said loan. The said property is in the sole name of the 1st Plaintiff.c.The Plaintiffs so far has paid in full the principal amount of Kenya Shillings Seven Million (Kshs. 7,000,000/=) plus a further sum of another Kenya Shillings Seven Million (Kshs. 7,000,000/=) as interest and penalties to the total tune of Kenya Shillings Fourteen Million (Kshs. 14,000,000/=).d.The Plaintiffs further states that the Defendant is still demanding a further sum of about Kenya Shillings Five Million (Kshs. 5,000,000/=) as further costs, interests and penalties to push total sum of Kenya Shillings Nineteen Million (Kshs. 19,000,000/=).e.The Plaintiffs feels the Defendant claim is illegal, excessively exorbitant loan. The same as rendered the Plaintiffs destitute and now unable to meet parental responsibilities as regard payment of their children school fees, medical and other necessary upkeep.f.THE Defendant as advertised on the Daily Nation Newspaper on the 17th November, 2025 to sell by Public Auction the said suit property on the 5th December,2025 on Friday for non-payment of their further penalties and interest.g.The Plaintiffs prays to this Honorable Court to stay sale until all issues herein including over-payment be address during main hearing of this case.h.The Plaintiffs claims against the Defendant is for an order of permanent injunction and/or an order to stop/stay the sale of the suit property SOY/SOYBLOCK 10 (NAVILLUS)/1114 and restraining the Defendant by herself, its agents, its employees from selling, attaching, repossessing, seizing or disposing off the said suit property through a Public Auction or otherwise in an effort to recover their alleged loan, costs, interests and penaltiesi.That this Honorable Court investigates and reviews the entire loan plan and to order the Defendant to refund to the Plaintiffs any excess money paid to them contrary to the lawj.That there is no other suit pending and there have been no previous proceedings in any other Court between the Defendant and the Plaintiffs regarding the same subject matterk.Demand and Notices of intention to sue has been issued in vain rendering the institution of this suit necessary.l.That the cause of action arose within the jurisdiction of this Courtm.Reasons wherefore the Plaintiffs pray for judgment against the defendant for:-(a) Orders as per paragraphs 10 & 11 of the plaint above. (b) Costs and interest at Court Rates. (c) Any other or further relief that this Honorable Court may deem fit to grant 10.From the pleadings and the remedies applied for by the Plaintiffs, Section 76(1)(2) of the Corporative Society Act provides the framework on original jurisdiction of such disputes as pleaded by the Plaintiffs. Thus: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; orb.between members, past members or deceased members, and the society, its Committee or any officer of the society; orc.between the society and any other co-operative Society; it shall be referred to the Tribunal.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; orb.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 license or any other due, from the Authority. 11.These provisions expressly provide the jurisdiction and the forum to entertain and adjudicate over the issues in the plaint. This High Court is apparent that it has no jurisdiction on the substantive disputes which arises with regard to the loan agreement between the Cooperative Society and the Plaintiffs. 12.The lawyerly fascination with jurisdiction derives as well from the intriguing, and sometimes jarring, juxtaposition between jurisdiction as an abstract, conceptual ideal and the on-the-ground reality of jurisdiction as a practical legal doctrine guiding the workaday business of the State and levels of Courts. As an ideal jurisdiction of the Court reflects the power and basic authority of the Court. It is both a constitutional dictate and statutory clothed within that legislative scheme by the Legislature. A Court without jurisdiction on this view is like an unplugged appliance. It simply will not function for the intended purpose whether at personam or subject matter or cause of action as filed by the disputants. In reality however, even a Court that clearly lacks jurisdiction can fully establish the legal rights and obligation of the parties before it by entering a binding judgment but it is impossible to enforce or execute that judgment. That judgment is classified as void or voidable. Therefore, the litigants must appreciate that jurisdiction is something separate, special and unique. It is an autonomous conceptual domain of the Constitution and the enabling Statute. In this application the preliminary objection raised by the Defendant/Respondent is power-based conception of jurisdiction accorded Courts and its not just a mere wish or allegations as submitted by legal Counsel for the Plaintiff. The equation of jurisdiction which is a Court’s power or basic authority is deeply engrained in our legal history, culture, constitution, statute and continues to provide a familiar starting point for the adjudication of disputes in the various forums created by the Constitution or Statute. I am therefore persuaded that there is merit in the preliminary objection raised by the Defendant/Respondent that this Court cannot exercise original jurisdiction over the subject matter as alluded to by Learned Counsel for the Plaintiffs. The proper forum is clearly articulated to be the Cooperative Tribunal. From the proceedings meritoriously concluded by the Tribunal shall find their way to the High Court. The Plaintiffs therefore have invoked the jurisdiction of this Court prematurely and they must suffer the consequences for ignorance of the law is no defense. 13.Following from our findings above the final orders to be made are as follows:a.That the suit herein is struck out for want of jurisdiction.b.As the costs follow the event the Plaintiffs shall meet the costs of this litigation as against the defendant.c.It is so ordered. DATED, DELIVERED AND PUBLISHED VIA CTS AT ELDORET THIS 6TH DAY OF JULY 2026.………………………….……….R. NYAKUNDIJUDGE