Rugucho v Cooperative Bank Housing Cooperative Society Limited [2025] KECPT 364 (KLR)

Rugucho v Cooperative Bank Housing Cooperative Society Limited (Tribunal Case 663/E715 of 2022) [2025] KECPT 364 (KLR) (Civ) (10 July 2025) (Ruling)

Neutral citation: [2025] KECPT 364 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Civil

Tribunal Case 663/E715 of 2022

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

July 10, 2025

Between

Juliah Kagiri Rugucho

Claimant

and

Cooperative Bank Housnig Cooperative Society Limited

Respondent

Ruling

1. This ruling dispenses two applications.

2. The first application is the Notice of Preliminary Objection dated 11th February 2025, filed by the Respondent. According to the Respondents, this Tribunal has no jurisdiction to determine the Notice of Motion application dated 14th November 2024 since they pertain to the transfer of land, and that the same is under the exclusive jurisdiction of the Environment and Land Court as provided under Section 13(1) of the Environment and Land Court Act.

3. The second application is the Claimant’s Notice of Motion Application dated 14th November 2024 supported by an affidavit sworn by the Claimant, Juliah Kaguri Ruchugo, and brought under Section 6 of the Co-operative Tribunal (Practice and Procedure) Rules, 2009, Order 51 Rule 1 of the Civil Procedure Act and all other enabling provisions of the Law. The application seeks the following orders:1. Spent2. That this Honourable Tribunal lacks the requisite jurisdiction to entertain the issues raised therein as they pertain to the transfer of land, a subject matter exclusively within he jurisdiction of the Environment and Land Court as provided under section 13 (1) of the Environment and Land Court Act.3. That this Honourable Tribunal therefore lacks the jurisdiction to entertain the present application and/or to grant the orders sought by the Claimant/Applicant.4. We shall deal with the Notice of Preliminary Objection first.

Notice Of Preliminary Objection Dated 11Th February 2025 5. The Respondent brought a Preliminary Objection on the ground that this court has no jurisdiction to hear and determine the issues raised in the Notice of Motion Application dated 14th November 2024. The notice of motion application seeks to execute the orders issued by this court in its judgement of 30th May 2024, in which this court found for the Claimant as against the Respondent. No issue of jurisdiction is raised regarding the power of this Tribunal determine the matter culminating in the above judgement. The question that arises, therefore, is whether this court can execute its own orders. The Notice of motion dated 14th November 2024 relates to the transfer of the subject parcel of land to the Claimant, but we are not told is that this court awarded the Claimant rights to the said parcel. The question that needs to be determined is whether this court can execute the orders it issued to wit, “…….The Respondent to transfer Plot Number Mtwapa/Kijipwa Block 1/61 to the Claimant…..”

6. Section 13(4) of the Environment and Land Court Act, provides as follows“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.”This provision alone, shows that there are other courts and Tribunals that have concurrent jurisdiction with the Environment and Land Court (ELC) on some matters, and in which the ELC will have appellate jurisdiction over them. Since there is no issue raised on the jurisdiction of this Tribunal to determine the matter subject to this matter, we will not dwell on the question of jurisdiction to determine the judgement which bestowed rights that are subject for transfer in the Notice of Motion dated 14th November 2024, and which this Preliminary Objective seeks to oppose. The question we will deal with is whether this Tribunal has jurisdiction to execute its own orders.

7. On the question of execution, section 79(3) of the Co-operative Societies Act provides that“Where the Tribunal enters judgment in terms of the award together with costs, it shall issue a decree which shall be enforceable as a decree of a court.Accordingly Order 22 Rule 6 provides thatWhere the holder of a decree desires to execute it, he shall apply to the court which passed the decree…..”

8. The above provisions of the law point go to show that the Cooperative Tribunal can issue decrees for its judgements, and that the decree holder will apply to the court that issued the decrees for execution.

9. This Preliminary Objection questioning the legality of the execution of an order that the Tribunal made, therefore fails.

Notice of Motion Application dated 14th November 2024 10. The preliminary objection having failed, this court will now proceed to determine the Notice of Motion Application dated 14th November 2024.

11. The first question before this Tribunal is whether it can order the Deputy Registrar to sign transfer forms and all necessary documents in place of the Respondent to facilitate the transfer of land title Mtwapa/Kijipwa/ Block 1/61 to the Claimant in accordance to the decree of this court dated 30th May 2024.

12. The grounds relied by the Applicant are inter alia that, this court issued a decree dated 30th May 2024 in which it ordered the Respondent to transfer land title Mtwapa/Kijipwa/ Block 1/61 to the Claimant. That, however, the Respondent is not willing to comply with the decree and has not filed an appeal or obtained any orders to stay the execution of the decree of this court.

13. The Respondent did not file any response opposing the application, and neither did it file any submissions. The Applicant filed his submissions dated 10th June 2025 in which they submit that this Tribunal have powers to enforce its own orders.

14. Section 98 of the Civil Procedure Act provides as follows:“Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other documents, or to endorse any negotiable instrument, the court may, on such terms and conditions, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it."Accordingly, in the case of Charles Mukoma Kimaru v Johnstone Muchomba Kaguya (2020) eKLR it was held;“……..it has now emerged that after the judgment of the court that the respondent with a view to defeat the execution of the judgment has refused and/or neglected to sign the relevant transfer documents which refusal/neglect is calculated to defeat this court's judgment. The only way the judgment and decree of the court can be effected is by authorizing the Deputy Registrar to sign all instruments of transfer of land to the applicant in place of the respondent within the confines of the taw as provided for.

15. From the above, it is noted that this Tribunal indeed has powers to order the Deputy Registrar to sign the transfer forms. As regards the prayer for partial discharge of the title to facilitate the transfer of land to the Applicant, this Tribunal notes that the Respondent did not oppose, nor offer an explanation as to why the property is charged. The property was charged sometime in the year 2016, long after the time of contract for the purchase of the property, 19th January 2011. Therefore, it cannot be said that the Applicant purchased the property encumbered. Flowing from all these, we are inclined to allow the prayers in the Notice of Motion dated 14th November 2024 as prayed.

16. The upshot of the foregoing is thatI.The Preliminary Objection dated 11th February 2025 lacks merit and is hereby dismissed.II.Prayers 2, 3, and 4 of the Notice of Motion Application dated 14th November 2024 are allowed as prayed and we make the following orders;a.The Deputy Registrar of the Co-operative Tribunal is hereby ordered to execute transfer forms and all necessary documents in place of the Respondent to facilitate the transfer of the land title Mtwapa/Kijipwa Block 1/61 to the Claimant/ Applicant in accordance with the Decree of this court dated 30th May 2024b.The District Land Registrar Kilifi is hereby ordered to issue a partial discharge of charge with respect to entries 1 and 2 in the encumbrance register of the land title Mtwapa/Kijipwa Block 1/61 and effect the transfer of land title Mtwapa/Kijipwa Block 1/61 to the Claimant/Applicant in accordance with the Decree of this court dated 30th May 2024 forthwithc.The District Land Registrar Kilifi is hereby ordered to dispense with the production of the original title deed to Mtwapa/Kijipwa Block 1/61 during the process of transfer to the Claimant/Applicant.SUBPARA d.The Claimant is awarded the costs of these Applications.

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JULY, 2025. HON. J. MWATSAMA DEPUTY CHAIRPERSON SIGNED 10. 7.2025Hon. Beatrice Sawe Member Signed 10. 7.2025Hon. Fridah Lotuiya Member Signed 10. 7.2025Hon. Philip Gichuki Member Signed 10. 7.2025Hon. Michael Chesikaw Member Signed 10. 7.2025Hon. P. Aol Member Signed 10. 7.2025Tribunal Clerk KokiNo appearance by partiesLater Khakula advocate for Claimant/applicantS.M. Kilonzi advocate for Respondent – No appearance.Hon. J. Mwatsama Deputy Chairperson Signed 10. 7.2025.