Kishushe Ranching Co-operative Society Limited (Suing Through Danson Kidai Mwandoto, Chairman) v Mwangondi & others (Environment and Land Miscellaneous Application E008 of 2026) [2026] KEELC 3485 (KLR) (Environment and Land) (9 June 2026) (Ruling)

Kishushe Ranching Co-operative Society Limited (Suing Through Danson Kidai Mwandoto, Chairman) v Mwangondi & others (Environment and Land Miscellaneous Application E008 of 2026) [2026] KEELC 3485 (KLR) (Environment and Land) (9 June 2026) (Ruling) Neutral citation: [2026] KEELC 3485 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Miscellaneous Application E008 of 2026 EK Wabwoto, J June 9, 2026 Between Kishushe Ranching Co-operative Society Limited (Suing Through Danson Kidai Mwandoto, Chairman) Applicant and Matilda Waleghwa Mwangondi & others Respondent Ruling 1.Before the Court is a Notice of Preliminary Objection dated 14th April 2026, filed by the Respondents through the firm of M/s Vincent Chebii & Co. Advocates. By it, the Respondents challenge the competence of these proceedings and the jurisdiction of this Court to entertain the Applicant’s Notice of Motion brought under a certificate of urgency, together with the suit. 2.The objection is taken on four grounds, which reduce in substance to three. First, that the Court lacks jurisdiction because the dispute concerns the governance, leadership, membership and administration of a co-operative society, being matters reserved to the Co-operative Tribunal under the Co-operative Societies Act. Secondly, that the suit is sub judice the proceedings in Co-operative Tribunal Case No. E920 of 2025, pending at Nairobi, contrary to section 6 of the Civil Procedure Act. Thirdly, that the proceedings amount to an abuse of the process of the Court through forum shopping and a multiplicity of suits. The fourth ground that the suit is incompetent, bad in law and ought to be struck out in limine with costs is in truth the prayer consequent upon the first three. 3.The application that provoked the objection is a Notice of Motion brought under a certificate of urgency. The Applicant described in the originating documents as Kishushe Ranching Co-operative Society Limited, suing through its Chairman, Mr. Danson Kidai Mwandoto seeks a raft of interlocutory orders. In summary, the Applicant prays for orders: restraining the meeting scheduled for 24th April 2026 and any other meeting of the Society; restraining persons not appearing in the verified and lawful membership register from dealing with the Society’s land; restraining the Respondents from allocating, subdividing, leasing, selling or transferring the Society’s land; freezing the Society’s bank accounts; restraining mining activities on the Ranch land save those undertaken by Devki Steel Mills Limited and Samruddha Resources Limited under existing agreements; placing the management of the Society under the committee said to have been upheld by a ruling dated 19th September 2024 and under the supervision of the Court; compelling the Commissioner for Co-operative Development and the County Director for Co-operatives, Taita Taveta, to produce a verified, validated and authenticated membership register; and implementing in full the Inquiry Report into the affairs of the Society. 4.The application is supported by the certificate of urgency, the supporting affidavit of Mr. Danson Kidai Mwandoto and the Applicant’s written submissions. The thrust of those documents is that there have been persistent disputes regarding the management, membership register and governance of the Society; that a statutory Inquiry was conducted by the Commissioner for Co-operative Development, whose Report was adopted on 29th January 2024; that the Report established the register as at 31st December 1982 to be the only credible register and found the recruitment of members thereafter to have been irregular and unsupported by resolutions of the general meeting; and that certain persons adversely mentioned in the Report, and said to be disqualified under section 28 of the Co-operative Societies Act, continue to hold office and to convene meetings and deal with the Society’s land, funds and mining interests. 5.In support of the objection, the Respondents filed written submissions dated 8th May 2026. They contend that, stripped of its drafting, the dispute is in substance an internal governance wrangle within the Society; that the reliefs sought concern meetings, the membership register, the legitimacy of officials, the implementation of the Inquiry Report and the management of the Society’s affairs; and that such matters fall within the preserve of the Co-operative Tribunal under section 76 of the Co-operative Societies Act. They invoke the doctrine of exhaustion, the bar against sub judice proceedings and the rule against abuse of process. They rely, among other authorities, on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd; Samuel Kamau Macharia v Kenya Commercial Bank Ltd & 2 Others; Speaker of the National Assembly v Karume; Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others; Kenya National Commission on Human Rights v Attorney General; and Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others. 6.The Applicant did not file written submissions in opposition to the objection but made oral submissions which the court has considered. 7.A convenient starting point is the settled meaning of a preliminary objection. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the former Court of Appeal for Eastern Africa explained that a preliminary objection consists of a point of law which, if argued, may dispose of the suit; that it must be raised on the assumption that all the facts pleaded by the other side are correct; and that it cannot properly be raised where any fact has to be ascertained or where what is sought is the exercise of judicial discretion. Law JA observed that a preliminary objection raises a pure point of law, and Sir Charles Newbold P warned that the improper raising of objections that in truth require evidence does the administration of justice no service. 8.The objection founded on jurisdiction squarely meets that test: whether the dispute, as pleaded, falls to this Court or to the Co-operative Tribunal is determinable on the face of the Applicant’s own pleadings, without the ascertainment of any contested fact. The grounds founded on sub judice and abuse of process call for closer examination, to which the Court returns below. Analysis and determination 9.Having considered the application and the oral submissions made by the parties, together with the written submissions dated 8th May 2026 filed by the Respondents, three issues arise:i.Whether this Court has jurisdiction to hear and determine the dispute;ii.Whether the suit is sub judice Co-operative Tribunal Case No. E920 of 2025;iii.Whether the proceedings amount to an abuse of the process of the Court. Whether the court has jurisdiction 10.Jurisdiction is the foundation of all adjudication. In the Lillian S (supra), Nyarangi JA held, in words repeated countless times since, that jurisdiction is everything, that without it a court has no power to make one more step, and that a court must down its tools the moment it holds that it is without jurisdiction. The Supreme Court reaffirmed in Samuel Kamau Macharia (supra) that a court’s jurisdiction flows from either the Constitution or legislation or both, and that a court cannot arrogate to itself a jurisdiction exceeding that which is conferred upon it by law. 11.The jurisdiction of this Court is conferred by Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, which together vest in the Court the power to hear and determine disputes relating to the environment and to the use and occupation of, and title to, land. That jurisdiction is real and substantial. The question, however, is not whether the dispute touches land at some point, but what, in substance, the dispute is about. 12.The Court is enjoined to look beyond the label affixed to a claim and to discern its true nature and dominant character. A party cannot, by the manner of drafting, clothe a court with a jurisdiction that the law withholds, nor oust the jurisdiction of a specialised tribunal to which the legislature has committed a class of disputes. Read as a whole, the substratum of the present dispute is unmistakable. The Applicant complains of an irregular membership register, the disqualification of officials adversely mentioned in the Inquiry Report, the legitimacy of meetings and elections, the control of the Society’s funds, and the implementation of the Inquiry Report. Every operative prayer is directed at who may lawfully convene meetings, who may sit on the management committee, who appears on the register, and who may therefore deal with the Society’s assets. These are, by their nature, disputes concerning the internal governance and administration of a co-operative society. 13.Section 76 of the Co-operative Societies Act vests in the Co-operative Tribunal the determination of disputes concerning the business of a co-operative society, including disputes between the society and its members or officers and disputes touching the management and administration of the society. The reliefs sought in the Notice of Motion fall comfortably within that description. The complaints regarding the Society’s land and the mining activities upon it do not alter this conclusion; they are consequential upon, and inseparable from, the anterior question of who lawfully controls the Society. Strip away the governance dispute and no freestanding cause within the jurisdiction of this Court remains: the Society’s title to its land is not impugned, no question as to the use, occupation or title to land arises independently of the contest for control of the Society, and the environmental and mining complaints are advanced not in vindication of any environmental right, but as a further ground for restraining the rival faction. 14.The doctrine of exhaustion fortifies this conclusion. In Speaker of the National Assembly v Karume [1992] eKLR, the Court of Appeal held that where there is a clear procedure for the redress of a particular grievance prescribed by statute, that procedure should be strictly followed. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the Court of Appeal reiterated that parties ought first to exhaust the dispute-resolution mechanisms established by statute before resorting to the ordinary courts. The legislature having committed disputes concerning the business of a co-operative society to the Co-operative Tribunal, it is to that forum that the Applicant must repair. 15.The Court is alive to the caution that the doctrine of exhaustion is not absolute, and that a genuine constitutional question, or a matter truly beyond a tribunal’s competence, may justify a direct approach to the courts. No such exceptional circumstance is disclosed here. The Co-operative Tribunal is fully competent to determine the validity of the register, the legitimacy of the officials and the implementation of the Inquiry Report, and to grant such interim relief as may be necessary in aid of those determinations. 16.For these reasons, the Court finds that the dominant character of the dispute is the internal governance and administration of Kishushe Ranching Co-operative Society Limited; that the dispute falls within the jurisdiction of the Co-operative Tribunal under section 76 of the Co-operative Societies Act; and that this Court is without jurisdiction to entertain it. Whether the suit is sub judice 17.The finding on jurisdiction is, strictly, dispositive of the objection. For completeness, the Court addresses the remaining grounds. Section 6 of the Civil Procedure Act bars a court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where that suit is pending before a competent court. In Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others [2020] eKLR, the Supreme Court explained that the rationale of the doctrine is to forestall a multiplicity of proceedings and the risk of conflicting decisions by courts of concurrent jurisdiction. 18.The Respondents assert that the Applicant is the principal claimant in Co-operative Tribunal Case No. E920 of 2025, in which he challenges the legitimacy of the officials, the legality of the meetings and elections, and seeks the implementation of the Inquiry Report and restraining orders against the Respondents reliefs said to be substantially identical to those sought here. If that be so, the requirements of section 6 would be substantially met, for the issues would be directly and substantially the same and the Tribunal a competent forum. 19.The difficulty is evidential. The pleadings in Co-operative Tribunal Case No. E920 of 2025 are not on the record before this Court, and the comparison of the two sets of proceedings essential to a finding of sub judice cannot be undertaken on assertion alone. To that extent the ground strays towards a question of fact requiring ascertainment, which sits uneasily with the nature of a preliminary objection as explained in Mukisa Biscuit (supra). The Court would therefore have been slow to uphold the objection on this ground standing alone. Given the finding on jurisdiction, it is unnecessary to determine the point conclusively, and the Court declines to do so. Whether the suit is an abuse of process 20.A similar observation applies to the allegation of abuse of process. The principle is not in doubt: in Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, the Court of Appeal recognised that the institution of a multiplicity of actions on the same subject matter, against the same party, amounts to an abuse of the process of the court. Where, however, the charge of forum shopping depends upon a comparison of pleadings not before the Court, it cannot be established as a pure point of law. The Court makes no finding of abuse, it being unnecessary in light of the conclusion on jurisdiction; though it observes that a litigant who has invoked the Tribunal would be well advised not to pursue the same controversy in a second forum. Conclusion 21.A court that finds it has no jurisdiction must, in the words of the Lillian S, down its tools. Having held that the substratum of the dispute lies within the jurisdiction of the Co-operative Tribunal, this Court cannot proceed to entertain the Notice of Motion or the suit. 22.On costs, it is hereby directed that each party should bear own costs of the proceedings herein. Final orders 23.In the result, the Court makes the following orders:i.The Preliminary Objection dated 14th April 2026 is upheld.ii.The Notice of Motion is hereby struck out for want of jurisdiction.iii.Each party shall bear own costs.iv.This file is hereby marked as closed.It is so ordered. DATED, SIGNED AND DELIVERED AT VOI THIS 9TH DAY OF JUNE 2026.E.K. WABWOTOJUDGERuling delivered in the presence of:Mr. Danson Mwandoto the Applicant appearing in person.Mr. Chebii for the Respondents.Court Assistants; Mary Ngoira and David Ngoosa.