[2023] KECPT 841 (KLR)

Njuguna & others v Mwaura & others (Cause 399 of 2005) [2023] KECPT 841 (KLR) (21 September 2023) (Ruling)

Neutral citation: [2023] KECPT 841 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Cause 399 of 2005

BM Kimemia, Chair, J. Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members

September 21, 2023

Between

Jonathan Mungai Njuguna & others

Claimant

and

samuel Mwaura & others

Respondent

Ruling

1. The Application for determination is Notice of Motion dated 9/9/2022 brought under Article 162(2) Constitution of Kenya 2010, Section 13 and Section 26(3) Environment Land Court ActJurisdiction of the Court:(1)The Court shall have original and Appellate jurisdiction to hear and determine all disputes in accordance with Article 162(2) (b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.(2)In exercise of its jurisdiction under Article 162(2)(b) of the Constitution, the Court shall have power to hear and determine disputes—(a)relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;(b)relating to compulsory acquisition of land;(c)relating to land administration and management;(d)relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; and(e)any other dispute relating to environment and land.(3)Nothing in this Act shall preclude the Court from hearing and determining applications for redress of a denial, violation or infringement of, or threat to, rights or fundamental freedom relating to a clean and healthy environment under Articles 42, 69 and 70 of the Constitution.(4)In addition to the matters referred to in subsections (1) and (2), the Court shall exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the Court.(5)Deleted by Act No. 12 of 2012, Sch.(6)Deleted by Act No. 12 of 2012, Sch.(7)In exercise of its jurisdiction under this Act, the Court shall have power to make any order and grant any relief as the Court deems fit and just, including—(a)Interim or permanent preservation orders including injunctions;(b)Prerogative orders;(c)Award of damages;(d)Compensation;(e)Specific performance;(f)Restitution;(g)Declaration; or(h)Costs.The Application seeks for orders1. Spent2. The Honorable Tribunal be pleased to grant leave to the firm of D.K Githinji &company advocate to take over the conduct of this claim from the firm of Onsando Oginji & Tiego Advocates3. Pending this Honourable Tribunal be pleased to issue an order staying of execution of the judgment and decree issued on 6th May 2022 and all consequential orders pending the hearing and determination of this Application interpartes.4. This Honorable Tribunal be pleased to set aside it’s the judgment and decree issued on 26th May 2022 and all consequential orders.5. Cost of this Application.6. Any other or further order that this Honorable Tribunal may deem fit to grant.The Application is supported by Affidavit in support of Samuel Mwaura sworn on 9/9/2022 and avers they desire to appoint D.K Githinji & company advocates to take over conduct of the suit. Further he avers that the Tribunal delivered judgment on 26/5/2022 allowing the Claimant’s Claim in full and in the process ordering land registrar to effect transfer of land.That to the extent of the Tribunal ordering for such transfer the Tribunal did not have the Jurisdiction as there is a specialized court and that the Tribunal does not extend to issues relenting to use occupation and title to property.

2. The Claimant/ Respondent filed a Replying Affidavit by Peter Ndungu Nene sworn on 1/10/2022 and averred that the Tribunal lacks jurisdiction to entertain prayer 3 and 4 of the Application by virtue of the doctrines of functus officio and res judicate.That if the Tribunal entertains the Application it shall be usurping the Appellate jurisdiction of the High court under section 81 Cooperative Society Act.The Claimant/Respondent state that Respondent/Applicant ought to have preferred an Appeal.The Claimant/Respondent further state that 1st Respondent enriched himself at the expense of the members and only seek to frustrate efforts of the members to get their Land.Further the Claimant/Respondent aver the High Court have determined the matter in Jonathan Muingai & 12 others Vs. Samuel Mwaura& 3 others [2010] eKLR on 21ST January, 2020, where the law was stated as follows by the high court:-‘’It would appear the two avenues could be approached as alternative methods of dispute resolution mechanism in cooperative societies disputes .In other words, the fact that there is an alternative remedy did not oust the cooperative Tribunal’s jurisdiction to hear the disputes.Having re-evaluated the evidence presented before the Tribunal, it is clear that the claim which was before the Tribunal is that envisaged under section 58 of the CooperativeSocieties Act, hence the Tribunal had jurisdiction to hear and determined it. The learned Tribunal chairman therefore fell into error when he denied the Tribunal jurisdiction.’’

3. The parties filed Written Submissions in a bid to canvass the Application. The Replying Affidavit dated 22/11/2022 and Claimant/ Respondent filed their written submissions dated 4/12/2022Upon perusal of the same the issue for determination is one that shall be determine the Application. Issue one Whether the Tribunal has jurisdiction to entertain land matters.We note jurisdiction is everything as stated in the case of Samuel Kamau Macharia & another vs. Kenya Commercial Bank Ltd & others (2012) eKLR. The court stated;‘’A court’s Jurisdiction flows from either the Constitutes or legislation or both .Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or either written laws.It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by laws’’In the case of Jonathan Muingai Njuguna & 12 others Vs. Samuel Mwaura & 3 others 2010 eKLR.‘’It would appear the two avenues could be approached as alternative method of dispute resolution mechanism in cooperative societies disputes .In other words, the fact that there is an alternative remedy did not oust the Cooperative Tribunal’s jurisdiction to hear the disputes’’.The Cooperative Society Act Section 76 gives the disputes which the cooperative Tribunal launches.Section 76 states;Disputes“(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; or(b)Between members, past members or deceased members, and the society, it’s Committee or any officer of the society; or(c)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; or(b)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.”The key word therein being disputes concerning the business of the Cooperative the subject matter of the case that was determine was for L.R NO.10343,LR NO 505 and LR NO6935 as well asi.A declaration that the 1st Respondent holds a parcel of land ,Kaisagat/Chepkoilel plots Nos.109,110,111,112,113,114,115,116,119 and 120-127 ,146,147,148,149,150,15,152,154,5505/2 and L.R NO.5505/2 upon trust for the 4th Respondent’s wife Margaret W Gitau ,hold parcels Nos 168 and ‘171 upon trust for the 4th Respondent whilst his son ,Simon Njoroge Kamonye holds plot No .90 upon trust for the 4th Respondentii.A declaration that the 2nd Respondent holds parcel of land Kaisagat /Chepkoilel Plots No 108,211,214 and 240 upon trust for the 4th Respondent.iii.A declaration that the 3rd Respondent hold parcel of land Kaisagat /Chepkoilel plots Nos.21, 59,107,213 and 125 upon trust for the 4th Respondent.iv)A declaration that the Respondent are under a duty to account to the Claimants and the members of the 4th Respondent ,the 4,200 acres comprise in LR No.10343 ,LR No.505 and LR No. 6935,entrusted to them for subdivisions as per the 1998 resolution of the 4th Respondent.vi)An order that the 1st Respondent transfer to the 4th Respondent Kaisagat/ Chepkoilel plot Nos 109,110,11,.112,113,114,115,116,119,and120-127,146,147,148,149,150,151,152,154,5505/2 and LR No.6935. vii)An order that the 2nd Respondent transfers to the 4th Respondent Kaisagat /Chepkoilel plots Nos 108,211,214,240viii)An order that the 3rd Respondent transfers to the 4th Respondent Kaisagat /Chepkoilel plot Nos.21, 59,107,213 and 125. Ix)An order that the Respondent do account for all the parcels of land comprised in Kaisagat/Chepkoilel Block5. (Kiriita) and kapomboi/Kologolo Block 1/kiriita originally LR No.6935. That was the core of the case at the point of determinationThe said parcel were bought while conducting the business of the 4th Respondent.The said land then falls under the ambi of sec 76 Cooperative Society Act.The said property belong to the membership of the 4th Respondent and could only do so on behalf of the membersThe Cooperative Tribunal as such have jurisdiction over the said matter.The dispute be between the parties in the case in question falls under section 76 Cooperative Society Act and thus asserts its authority over the same

4. As such we find the Application dated 9/9/2022 to be without merit the same is dismissed with no orders as to cost.b.The Honorable Tribunal is pleased to grant leave to the firm of D.K Githinji &company advocate to take over the conduct of this claim from the firm of Onsando Oginji & Tiego Advocates.c.This Honorable Tribunal is not pleased to set aside it’s judgment and decree issued on 26th May 2022 and all Consequential Orders.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF SEPTEMBER, 2023. HON. BEATRICE KIMEMIA CHAIRPERSON SIGNED 21. 9.2023HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023HON. BEATRICE SAWE MEMBER SIGNED 21. 9.2023HON. FRIDAH LOTUIYA MEMBER SIGNED 21. 9.2023HON. PHILIP GICHUKI MEMBER SIGNED 21. 9.2023HON. MICHAEL CHESIKAW MEMBER SIGNED 21. 9.2023HON. PAUL AOL MEMBER SIGNED 21. 9.2023TRIBUNAL CLERK JEMIMAHGithinji advocate for the Respondent/ApplicantGibson Kamau Kuria advocate for the Claimant/Respondent- no appearanceTribunal order-Ruling as read out on 21. 9.2023. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 21. 9.2023