[2017] KEELC 2603 (KLR)
The court found that the pleadings did not establish that the Plaintiffs, Defendants, or the deceased were members of Muka Mukuu Farmers Co-operative Society, nor that the transaction in question was conducted in the capacity of members or involved the business of the Society. Furthermore, the Society itself was not...
Source-derived case information.
- Citation
- [2017] KEELC 2603 (KLR)
- Parties
- Plaintiff: Redempter Syombua Musyoki; Plaintiff: Robert Wambua Musyoki (suing as the legal representative of the Estate of Joseph Musyoki King'oo-Deceased); Defendant: Ngii Ndambuki; Defendant: Rosemary Ngii Nicodemus Kitavi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 353 of 2012
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Jurisdiction of Court, Preliminary Objection, Cooperative Societies Disputes, Land Ownership, Transfer of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Redempter Syombua Musyoki
Plaintiff
Robert Wambua Musyoki (suing as the legal representative of the Estate of Joseph Musyoki King'oo-Deceased)
Plaintiff
Ngii Ndambuki
Defendant
Rosemary Ngii Nicodemus Kitavi
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to hear the dispute or if it should be referred to the Co-operative Tribunal under Section 76 of the Co-operative Societies Act.
- 2 Whether the dispute concerns the business of a Co-operative Society as defined by law.
- 3 Whether the pleadings establish that the parties are members of the Co-operative Society or that the dispute falls within the scope of Section 76(1) of the Co-operative Societies Act.
Ratio Decidendi
The court found that the pleadings did not establish that the Plaintiffs, Defendants, or the deceased were members of Muka Mukuu Farmers Co-operative Society, nor that the transaction in question was conducted in the capacity of members or involved the business of the Society. Furthermore, the Society itself was not a party to the suit. Therefore, the dispute did not fall within the ambit of Section 76(1) of the Co-operative Societies Act, and the Environment and Land Court retained jurisdiction to hear the matter. The preliminary objection was thus dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The Defendants' Notice of Preliminary Objection dated 27th November, 2012 is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.353 OF 2012
REDEMPTER SYOMBUA MUSYOKI .............................1ST PLAINTIFF
ROBERT WAMBUA MUSYOKI (suing as the legal representative
of the Estate of JOSEPH MUSYOKI KING’OO-Deceased).2ND PLAINTIFF
VERSUS
NGII NDAMBUKI ..................................................................1ST DEFENDANT
ROSEMARY NGII NICODEMUS KITAVI ..........................2ND DEFENDANT
RULING
1. This Ruling is in respect to the Defendants’ Notice of Preliminary Objection dated 27th November, 2012.
2. In the said Notice of Preliminary Objection, the Defendants have averred that the court is divested of jurisdiction in view of the provisions of Section 76 of the Co-operative Societies Act and the directions of the Chief Justice of 20th September, 2012.
3. The Notice of Preliminary Objection proceeded by way of written submissions.
4. In his submissions, the Defendants’ advocates submitted that the proper forum for adjudicating this matter should be the Co-operative Tribunal and not this court; that the suit land is registered under the share number 692 of Muka Mukuu Farmers Co-operative Society and that some of the parties in this suit are members of the Co-operative Society under which the suit land is registered.
5. The Plaintiffs’ advocate submitted that the averments in the Plaint are not clear on whether the Plaintiffs, the Defendants or the late Joseph Musyoki King’oo are members of Muka Mukuu Farmers Co-operative Society Limited, and whether the dispute in issue concerns the business of a Co-operative Society.
6. Counsel submitted that not every dispute involving a Co-operative Society or its members is to be referred to the Co-operative Tribunal; that the claim herein involves land and that this court has unlimited jurisdiction on matters involving land.
7. The Plaintiffs herein have filed this suit as the legal representatives of the Estate of the late Joseph Musyoki King’oo.
8. In the Plaint, the Plaintiffs averred that the 1st Defendant was the registered proprietor of plot number 9-045; that the Plaintiffs were the beneficial users of the said land and that the late King’oo purchased the land from the 1st Defendant.
9. The Plaintiffs’ complaint is that the 1st Defendant, instead of transferring the land to their late father, transferred it to the 2nd Defendant.
10. The orders that the Plaintiffs are seeking are: a declaration that the late Joseph Musyoki King’oo is a bona fide purchaser for value of plot number 9-045; a declaration that the transfer of the suit land to the 2nd Defendant is null and void and for a permanent injunction as against the Defendants.
11. It is obvious from the Plaint that the status of the Plaintiffs and the Defendants in Muka Mukuu Farmers Co-operative Society Limited has not been mentioned.
12. From the perusal of the Plaint, it would appear that it is the 1st Defendant who was the registered proprietor of the suit land, and was therefore entitled to transact with the suit land.
13. According to the provisions of Section 76(1) of the Co-operative Societies Act, a matter shall be referred to the Co-operative Tribunal if any dispute concerning the business of a Co-operative Society arises: among members, past members and persons claiming through members and deceased members; or between members, past members or deceased members and the Society, its Committee or any officer of the Society; or between the Society and other Co-operative Society.
14. The pleadings before me do not show that the Plaintiffs’ late father was a member of Muka Mukuu Co-operative Society or that he purchased the suit land in that capacity.
15. Indeed, the pleadings before me do not show that the purported transaction between the Plaintiffs’ father and the 1st Defendant or between the 1st Defendant and the 2nd Defendant in respect to the suit land can be categorized as “the business of a Co-operative Society.”
16. Considering that Muka Mukuu Farmers Co-operative Society is not a party to this suit, I decline to find that the dispute herein falls within the definition of “a dispute concerning the business of a Co-operative Society” envisioned by Section 76(1) of the Co-operative Societies Act.
17. For those reasons, I dismiss with costs the Defendants’ Notice of Preliminary Objection dated 27th November, 2012.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 30TH DAY OF JUNE, 2017.
O.A. ANGOTE
JUDGE