Thyaka & another (Suing Personal Representatives of the Estate of Timothy Thyaka Uvai Mai (Deceased)) v Ngonzi & 3 others [2025] KECPT 261 (KLR)

Thyaka & another (Suing Personal Representatives of the Estate of Timothy Thyaka Uvai Mai (Deceased)) v Ngonzi & 3 others (Tribunal Case 12 of 2020) [2025] KECPT 261 (KLR) (27 February 2025) (Ruling)

Neutral citation: [2025] KECPT 261 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 12 of 2020

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

February 27, 2025

Between

Benard Muema Thyaka

1st Claimant

Anah Mbatha Musyoki

2nd Claimant

Suing Personal Representatives of the Estate of Timothy Thyaka Uvai Mai (Deceased)

and

John Ngungu Ngonzi & 3 others

Respondent

Ruling

1. The matter for determination is a Preliminary Objection raised orally on the hearing date of hearing of the main suit by Counsel for the 3rd Respondent Mr. Sila AdvocateThe Preliminary Objection was raised pursuant to paragraph 11-15 of the response to the Claim by the 3rd RespondentThe 3rd Respondent preliminary objection was anchored on the fact that the Tribunal has no jurisdiction under Section 76 Co-operative Society Act where he states there is nowhere the 3rd Respondent has been referred to as a member of Respondent which ousts this Tribunal from having jurisdiction.

2. The 2nd Preliminary Objection the 3rd Respondent avers is a touches on land of 3rd Respondent which has title deed number Athi River/Athi River/1/680 and issues on hand falls under Section 13 of ELC Act 2011 which ELC court is to determine.

3. The Claimant in response stated the 3rd Respondent filed a Defence in their Reply to Defence dated 20/3/2022 raised a Preliminary Objection on competence of the Defence by 3rd Respondent.The 3rd Respondent Counsel entered appearance for the 1st and 3rd Respondent and filed their Statement of Defence dated 27/4/2022 which was long after the 1st Respondent had passed on way back as such his Defence ought to be struck out and dismissed because his instructing client had long passed away.

4. On the issue of jurisdiction as alluded by 3rd Respondent Counsel, he stated that Section 76 Co-operative Society Act envisages the business of the Co-operative Society.To ascertain its business reference has to be made to the by-laws of the 4th Respondent to which by-law number 441The objects of the society are … To acquire land, building for benefit of members of the society…….The by -law no 5. 2 states:“……………….. registration with any person for acquisition of land or equipment in pursuant of object of the society…………………”

5. Claimant further averred under the doctrine of exhaustion an aggrieved litigant should exhaust all legal redress before any quasi-judicial body before seeking to go to mainstream it.As such Tribunal has jurisdictionIn a rejoinder 3rd Respondent Counsel stated ownership of land is not one that the Tribunal can determine and that doctrine of exhaustion cannot be used which then are clear jurisdictions.

6. Having considered the submissions by both parties there are 2 issues for determination;Issue one:Whether the Co-operative Tribunal has jurisdiction to determine land matters?Issue two:Whether the 3rd Respondent is rightly sued under Section 76 of Co-operative Society Act

7. Issue one:Whether the Co-operative Tribunal has jurisdiction to determine land matters at the time and again this has been a heavy issue being raised by Respondents being brought under the ambit of the TribunalOur views and determination is that any issue touching on the societies that is, if it is in the business of a society to deal with land matters, we have jurisdiction more so when the conflict is between a member of a society and a society in regard to ownership.

8. These are issues which the Co-operative Tribunal is to deal with and determine because of the nature of transactions between the member and society which the High Court may not be able to interrogate at first instance.Upon registration of land to the members any other issue that rises as may arise outside the society the same then becomes or is no longer with the jurisdiction of the Co-operative Tribunal.The Co-operative jurisdiction over land Issues is definately limited to disputes concerning land held by a Co-operative Society as part of its business activities.The by- laws of 4th Respondent are clear as alluded by Claimant’s Advocate on business of the society.Article/By- law no. 4. 4.1By law no 5. 2

9. We note that jurisdiction is everything Section 76 of Co-operative Society Act is very clear “that any dispute concerning the business of a Cooperative society and arising among members of the society or members and the society or its committee or any officer of the society shall be referred to the Co-operative Tribunal under Section 81 (II) of the Act by any party aggrieved by the order”We have looked into the statement of claim and its claim against the Respondents herein respectively.Matters raised in the claim is in respect to sale and transfer of land parcel no. Athi River/Athi River Block 1/680 and plot no. 3434 Katelembo.Orders sought also lead to declaration of share of membership which can only be dealt with at the Co-operative Tribunal.And the deregistration of the Respondent from the 4th Respondent which also is an issue which cannot be determined by an ELC but at the Tribunal

10. The claim relates to business of the society as envisaged under Section 76 of Co-operative Society ActWe found the Tribunal has jurisdiction to handle the matter at hand.Issue two:Whether the 3rd Respondent is rightly sued under Section 76?The 3rd Respondent given this submissions and analysis has been rightly sued by the Claimants.How else will the issue be determined on how 3rd Respondent got the land in land parcel no. Athi River/Athi River Block 1/680 and plot no. 3434 in Katelembo in their absence?

11. We note there are conflicting decisions by the High Court in regard to jurisdiction of the Co-operative Tribunal. They are not in argument as to the issue of jurisdiction, however we choose to be guided by the supreme court decision of Abdidha NicholasPetition No. E007 of 2023 Nairobi where it states the Court/Judicial bodies need to consider each case on its own merit.The court of first instance as per the supreme court judges is in a our opinion the Co-operative Tribunal to deal with issues of land which emanate from business of the society …..

Upshot 12. As such this Preliminary Objection raised on 17/10/24 by 3rd Respondent is found to be without merit and is dismissed.

13. On the issue of 1st and 3rd Respondent Statement of Defence not being properly on record, we agree with the Claimants and as such strike out the 1st and 3rd Respondent Statement of Defence.

14. Hearing of main suit on 17/7/2025

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF FEBRUARY, 2025. HON. B. KIMEMIA - CHAIRPERSON SIGNED 27. 2.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 27. 2.2025HON. BEATRICE SAWE - MEMBER SIGNED 27. 2.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 27. 2.2025HON. PHILIP GICHUKI - MEMBER SIGNED 27. 2.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 27. 2.2025HON. PAUL AOL - MEMBER SIGNED 27. 2.2025Tribunal Clerk JonahNo appearance by the parties.