Johnson Miano Gatu, Joseph Irungu Barugu, John Bundi Luchetu & Bonifacfe Charles Kyengo v Moses Mukhaya, Raphael Omondi, Francis Ndambuki, Commissioner of Co-Operatives,Nairobi County, Liquidator of Nairobi Railways Consumer Co-Operative Society Limited & National Land Commission [2021] KEELC 2209 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC CASE NO. 768 OF 2017

JOHNSON MIANO GATU.................................................1ST PLAINTIFF

JOSEPH IRUNGU BARUGU............................................2ND PLAINTIFF

JOHN BUNDI LUCHETU.................................................3RD PLAINTIFF

BONIFACFE CHARLES KYENGO.................................4TH PLAINTIFF

VERSUS

MOSES MUKHAYA..........................................................1ST DEFENDANT

RAPHAEL OMONDI.......................................................2ND DEFENDANT

FRANCIS NDAMBUKI....................................................3RD DEFENDANT

THE COMMISSIONER OF CO-OPERATIVES,

NAIROBI COUNTY........................................................4TH DEFENDANT

LIQUIDATOR OF NAIROBI RAILWAYS CONSUMER

CO-OPERATIVE SOCIETY LIMITED.......................5TH DEFENDANT

NATIONAL LAND COMMISSION............................6TH DEFENDANT

RULING

The Defendant filed a preliminary objection on 4/7/2018 that this court lacked jurisdiction to entertain the suit and contended that there was a suit filed in the Cooperative Tribunal being Tribunal Cause Number 359 of 2016 which had not been decided.

The court directed parties to file submissions on the preliminary objection. The 1st and 5th Defendants submitted that the Plaintiffs, who were former officials of Nairobi Railways Consumer Cooperative Society Limited filed this suit seeking certain reliefs regarding a parcel of land which was owned by that cooperative society. The 1st and 5th Defendants contended that under Section 76 of the Cooperative Societies Act, any dispute concerning the business of the cooperative society which may arise among members or former members or between members and the society or its committee is to be referred to the Cooperative Tribunal. The 1st and 5th Defendants submitted that this suit is a dispute between a cooperative society or its management committee and some members of the cooperative society and ought to be referred to the Cooperatives Tribunal because Section 81 of that Act restricts the jurisdiction of the High Court to hearing appeals from the Cooperative Tribunal.

The 1st and 5th Defendants relied on Adero Adero & Another v Ulinzi Sacco Society Limited [2002] eKLR where the court found that the forum with jurisdiction to determine the dispute between a registered cooperative society and its members was the Cooperative Tribunal. They also relied on Gerald Wambua Makau v Lukenya Ranching and Farming Cooperative Society Limited and Another [2004] eKLR.

The Plaintiffs admitted in their submissions that they and the 1st to 3rd Defendants were members of Nairobi Railways Consumer Cooperative Society Limited which had been placed in liquidation. They contended that this suit related to land reference number 2009/2763 in which they contend that the due process of law was not followed when that land was disposed of. They added that this case concerned different parties who were not members of the cooperative society. They argued that for Section 76 of the Cooperatives Societies Act to apply, the dispute must strictly be between members of a society or a past society and must involve the business of the society. They contended that they were seeking reliefs from other entities that are not members of the cooperative society. They also contended that they wished to have the 6th Defendant produce the records of the suit land to enable them include the present owner of the land in these proceedings. Further, that the only reason why they made the 6th Defendant a party was for it to produce the records showing the present owner of the land. They relied on Republic v Cooperative Tribunal & 2 Others, Ex parte Jackson Wekesa Abala [2019] eKLR, the Environment and Land Court Act and Article 162 (2) (b) of the Constitution on this court’s jurisdiction. They urged the court to dismiss the preliminary objection while arguing that they stood to be prejudiced if this suit were dismissed.

The court notes that the Plaintiffs did not make any submissions regarding the Defendants’ contention that Tribunal Cause Number 359 of 2016 was pending and that it relates to the subject matter of this suit. Looking at the orders sought in the plaint dated 20/12/2017, the Plaintiffs seek a declaration that the suit land was sold illegally and nullification of the transfer of the suit land to third parties. They also seek a statement of account showing the receipts and disbursements of the purchase price by the 5th Defendant. In addition, they seek to have the National Land Commission ordered to revoke the transfer of the suit land and any title deed issued and to have the title revert to the cooperative society.

On the contention that the Plaintiffs need the National Land Commission to produce the records showing the present owner to enable the Plaintiffs include that owner in these proceedings, the court doubts that this falls within the mandate of National Land Commission under the law. Any party can conduct a search at the Lands Registry to ascertain the registered proprietor of land in issue for purposes of making them parties to the suit.

The court is satisfied that this dispute ought to be determined by the cooperatives tribunal since it is a dispute between members of a cooperative society and relates to the business of a cooperative society.

The preliminary objection is upheld. The Plaintiffs will meet the costs of the 1st and 5th Defendants for this suit.

DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JUNE 2021.

K. BOR

JUDGE

In the presence of: -

Mr. Samuel Wanyanga for the Plaintiffs

No appearance for the Defendants

Mr. V. Owuor- Court Assistant