Moses Omboga Osiemo v Latema Sacco, Jephys Auctioneers, Victor Chweya Nyambane, Abedinego Okenye Ongata and Lydia Kerubo Omwenga

Osiemo v Latema Sacco & 4 others (Tribunal Case E349 of 2022) [2026] KECOPT 337 (KLR) (20 August 2026) (Ruling) Neutral citation: [2026] KECOPT 337 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E349 of 2022 J Mwatsama, Chair, B Sawe, F Lotuiya, PO Aol & M Chesikaw, Members August 20, 2026 Between Moses Omboga Osiemo Claimant and Latema Sacco 1st Respondent Jephys Auctioneers 2nd Respondent and Victor Chweya Nyambane 1st Objector Abedinego Okenye Ongata 2nd Objector Lydia Kerubo Omwenga 3rd Objector Ruling 1.A Notice of Motion Application dated 15th April 2024 was filed by the Objectors herein pursuant to section IA,1B and 3A of the civil procedure Act and Order 22 Rules 51,52,53 of the Civil Procedure Rules 2010 seeking for the following orders;i.Spent.ii.That the Tribunal be pleased to grant a Temporary Order of Stay of Execution of the Objectors’ motor vehicles KDD 188 J and KDN041C pending hearing and determination of this Application.iii.That the Tribunal be pleased to grant an Order lifting the Attachment and Execution against the Objectors’ motor vehicles KDD188J and KDN 041C.iv.That the Tribunal be pleased to grant a Temporary Order of Stay of sale and transfer of the motor vehicle KDDJ 188J and O41C to the Claimant and or any other third-party purchaser pending the hearing and determination of this Application.v.The costs of this Application be provided for. The Objectors Case. 2.That the Motor Vehicles Registration Nos. KDN 041C which was in possession of the 2nd Objector and KDD 118 J which was in possession of the 3rd Objector were proclaimed and attached pursuant to a Warrant of Attachment that was issued by the court on 26th October 2023 to satisfy the Claimants judgement against the 1st Respondent for a sum of Ksh 3,914,390/=. 3.The Objector aver that the subject motor vehicles do not belong to the 1st Respondent although the logbooks were registered in the names of the 1st Respondent and Co-operative bank. 4.That the 1st Respondent and the bank are not the owners of the Motor Vehicles and that the registration of the logbooks in their names was to act as security for the money lend to the 1st and the 2nd Objectors. With such an arrangement they submitted that the 1st Respondent and the bank are not the owners but registered owners for the purpose of collateral or security for payment of the loan. 5.The Objectors further submitted that, although the Claimant state in his Replying Affidavit that the Motor Vehicle Registration No. KDN 041C was sold for Ksh4,000,000/= there is no prove that the transfer was effected by the Registrar of Motor Vehicles. The Claimants Case. 6.In a Replying Affidavit dated 13th May 2024, the Claimant state that the Objectors are not the registered owners of the Motor Vehicles No. KDD188J and KDN 041C and that the Traffic Act deny them the locus standi to make objections. 7.The Claimant submit that based on the Ruling of this Tribunal delivered on 7th March 2024 and High court Ruling in Milimani HCCCOMISC E273/2024, the ownership of the Motor Vehicles KDN041C and KDD188J was addressed which paved the way for the sale of the said Motor Vehicles by public auction.To prove this fact in form of evidence, the Claimant attached the Transfer and NTSA copy of records for Motor Vehicle Registration No KDN 041C which is registered in the name of Kana Golicha Duba. 8.Resulting from the transfer and Registration to a 3rd party who is not a member of the 1st Respondent, the claimant submits that the tribunal lack jurisdiction over the matter. 9. Issues 1.Whether the Tribunal lack jurisdiction over the matter of the Motor Vehicle Registration No KDN 041 C or not? 2.Whether the objection raised on Motor vehicle KDD188J has been proved to the required standard or not? 3.Who will bear the cost of this Application? Analysis and Determination. 10. Whether the Tribunal Lacks Jurisdiction Over the Matter of the Motor Vehicle Registration No. KDN 041 C or not?Section 79(5) of the Cooperative Societies Act empowers the Cooperative Tribunal with geographical and pecuniary jurisdiction in Cooperative matters throughout the Republic of Kenya.Section 76 of the Act clothes the Tribunal with the statutory boundaries of the parties to whom their disputes can be heard and determined by the Tribunal. The section provides as follows:1.If any dispute concerning the business of a Cooperative 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 Cooperative SocietyIt shall be referred to the tribunal 11.While the Objectors argue out that the public auction of the Motor Vehicles did not take place and that the Motor Vehicles has not been sold, the Claimants filed NTSA Motor Vehicle copy records for Motor Vehicle Registration No. KDN O41C which show that the said motor vehicle was registered on 20th September 2023 in the name of KAna Golicha Duba who is not a member of the 1st Respondent.In the case of James Mwangi Kariuki V.Nanasi Housing Coopertive Society Ltd (2015).The court of Appeal held that:“a purchaser of a property who is not a shareholder or a registered member of a cooperative society falls outside the scope of section 76 hence the cooperative tribunal lacks jurisdiction”. 12.In the locus classicus case of “Owners of Motor Vessel “Lilian S”. V. Caltex Oil Kenya Ltd (1989) KLR 1, the court of appeal established that a tribunal or court cannot act without jurisdiction.The court held thus:“Jurisdiction is everything and without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for continuation of proceedings pending other evidences. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction---Where a court takes upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing.Jurisdiction must be acquired before judgement is given” 13.Accordingly, having established that the new registered owner of the Motor Vehicle Registration No. KDN 041 C is a not a member of the 1st Respondent, it therefore follows that the suit relating to the dispute of the said Motor Vehicle falls outside the scope of Section 76 of the Cooperative Societies Act, therefore the Tribunal lack jurisdiction and downs its tools down forthwith. ii) Whether the Objection Raised on Motor vehicle KDD188J has been Proved to the Required Standard or not? 14.It is trite law that the ownership of a Motor Vehicle is to be proved by the registration of a person as the owner of the Motor Vehicle, unless proved otherwise. section 8 of the Traffic Act provides that;“The person in whose name a vehicle is registered shall unless the contrary is proved be deemed to be the owner of the vehicle”.The 2nd Objector in her Supporting Affidavit dated 15th April 2024 admit that the Motor Vehicle Registration No.KDD 188J was registered in the names of the 1st Respondent and cooperative bank but not in her name. This admission is clear, plain and unequivocal and repeated in the 2nd objectors pleading to an extend that the tribunal does not need to require for further clarity. 15.However, the court in the case of Nancy Ayumba NgairaV. Abdi ALI & Another 2010 KEHC 1866 (KLR) stated that“There is no doubt that the registration certificate obtained from the Registrar of motor vehicles will show the name of the registered owner of a motor vehicle. But the indication thus shown on the certificate is not final proof that the sole owner is the person whose name is shown. Section 8 of the Traffic Act is fully cognizant of the fact that a different person, or different other persons, may be the de facto owners of the motor vehicle – and so the Act has an opening for any evidence in proof of such differing ownership to be given. And in judicial practice, concepts have arisen to describe such alternative forms of ownership: actual ownership; beneficial ownership; possessory ownership. A person who enjoys any of such other categories of ownership, may for practical purposes, be much more relevant than the person whose name appears in the certificate of registration; and in the instant case at the trial level, it had been pleaded that there was such alternative kind of ownership. Indeed, the evidence adduced in the form of the Police Abstract, showed on a balance of probabilities, that 1st defendant was one of the owners of the matatu in question” (emphasis ours) 16.While juxtaposing the contents of the above holding of the court to the instant objection, it is clear that the 2nd Objector has not provided any evidence to challenge the ownership of the said Motor vehicle apart from arguing that she was granted possession of the vehicle to do business under the auspices of the 1st Respondent.At the same time, she has not provided prove in form of a letter or an agreement between the registered owners and herself that she was granted possession neither has she provided any prove of a transfer or sale agreement that she owns the motor vehicle registration No. KDD188J. 17.Under the circumstances, the tribunal is therefore not persuaded that the 2nd objector has discharged her burden of prove as provided under section 107 (1) of the evidence Act which provide that:“107.A (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person”. 18.Although the 2nd Objector might have been in possession of the subject motor Vehicle, our position as a tribunal is that possession is different from ownership.On this, the court in the case of K.K.Verma V. Union of India 1954 had this to say:“That possession and ownership are conceptually distinct. Possession implies physical control and continuous intention whereas ownership is the complete legal title. One can legally possess a property without owning it”In the same vein, 2nd objector state that she was in possession of the Motor vehicle albeit without prove and in any event/circumstances, possession of the motor vehicle did crystalize into legal ownership. 19.In Light of the foregoing analysis and the reason discussed, it is the finding of this tribunal that the Notice of Motion Application dated 15th April 2024 does not have merit and is herby dismissed with costs to the Claimant. Final Orders.1.Application for a Temporary Stay of Execution of Motor Vehicle Registration No. KDN 041C is dismissed for lack of Jurisdiction. Motor Vehicle No. KDD188 J, the 2nd Objector failed to prove ownership hence the Application is hereby dismissed.2.The prayer for Order to lift the Attachment and Execution of the Motor Vehicles Nos. KDD 188J and KDC 041C is hereby dismissed.3.The Prayer for an Order for Stay of Sale and Transfer of the Motor Vehicles No KDN 041 C and KDD 188J is hereby dismissed.4.Cost and interest of this Application will be borne by the 2nd and 3rd Objectors. RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 20TH DAY OF AUGUST, 2026.HON. J. MWATSAMA - CHAIRPERSON - SIGNED 20.8.2026HON. BEATRICE SAWE - MEMBER - SIGNED 20.8.2026HON. FRIDAH LOTUIYA - MEMBER - SIGNED 20.8.2026HON. PAUL AOL - MEMBER - SIGNED 20.8.2026HON. MICHAEL CHESIKAW - MEMBER - SIGNED 20.8.2026Tribunal Clerk JemimahNo appearance by parties.Ruling delivered in absence of parties.