Ufundi Savings & Credit Co-operative Society Limited v Francis Gitari Ndirangu, Titus E. Obara & 297 others; Alex G. Marete, Co-operative Bank of Kenya Limited, Eunita Kerubo Ratemo & 199 others (Interested Parties) [2020] KEELC 605 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC APPEAL NO. 37 OF 2014

UFUNDI SAVINGS & CREDIT CO-OPERATIVE SOCIETY LIMITED...APPELLANT

=VERSUS=

FRANCIS GITARI NDIRANGU & 99 OTHERS..............................1ST RESPONDENT

TITUS E. OBARA & 199 OTHERS...................................................2ND RESPONDENT

ALEX G. MARETE & 19 OTHERS.......................................1ST  INTERESTED PARTY

CO-OPERATIVE BANK OF KENYA LIMITED.................2ND  INTERESTED PARTY

EUNITA KERUBO RATEMO & 100 OTHERS..................3RD  INTERESTED PARTY

FRANCIS GITARI NDIRANGU & OTHERS.............................................CLAIMANTS

=VERSUS=

UFUNDI SACCO LIMITED................................................................1ST RESPONDENT

TITUS E. OBARA & 199 OTHERS..................................................2ND RESPONDENT

ALEX G. MARETE & 19 OTHERS........................................1ST INTERESTED PARTY

CO-OPERATIVE BANK OF KENYA...................................2ND INTERESTED PARTY

EUNITA KERUBO RATEMO & 100 OTHERS..................3RD  INTERESTED PARTY

RULING

1. This is the notice motion dated 27th September 2018 brought under Section 59 of the Civil Procedure Act, Order 42 Rules 22, 13 and 30 of the Civil Procedure Rules.

2. By consent of all the parties on 24th June 2019, the application was compromised in the following terms: -

“By consent of all parties;

(1) The notice of motion dated 27th September 2018 be allowed except prayer (c)which is withdrawn.

(2) Prayer (b), (d), (e) and (f) in the said notice of motion be granted subject to (e) be after the hearing an determination of the notice of motion dated 24th May 2019.

(3) The appellant is hereby allowed to file an amended memorandum of appeal within fourteen (14) days from the date hereof.

(4) After the appellant has served the amended memorandum of appeal, parties do take directions on the appeal”.

3. This ruling is therefore in respect of prayer (e) which seeks orders; “that this file be placed before the honourable Chief Justice to nominate a bench of three (3) judges to hear and determine the appeal”.

4. By the consent of 24th June 2019, it appears all the parties are desirous that the appeal be heard by a bench to be nominated by the chief justice.

5. Section 21 of the Environment and Land Act, provides that:-

“1. The court shall be properly constituted for the purposes of its proceedings under this Act, by a single Judge.

2. Notwithstanding subsection (1) any matter certified by the court as raising a substantial question of law.

(a) Under Article 165(3) (b) or (c) of the constitution; or

(b) Concerning impact of environment and land:

Shall be heard by uneven number of Judges, as determined by the Chief Justice”.

Section 81 of the Cooperative Societies Act, No 12 of 1997 provides that;

“(1) Any party to the proceedings before the Tribunal who is aggrieved by any order of the Tribunal may, within thirty days of such order, appeal against such order to the High Court:

...............................

(2) Upon the hearing of an appeal under this section, the High Court may:-

(a) confirm, set aside or vary the order in question;

(b) remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the court may deem fit to give; (c) exercise any of the powers which could have been exercised by the Tribunal in the proceedings in connection with which the appeal is brought; or

(c) make such other order as it may deem just, including an order as to costs of the appeal or of earlier proceedings in the matter before the Tribunal.

(3) The decision of the High Court on any appeal shall be final”.

6. It is clear that neither the Environment and Land Court Act nor the Cooperative Societies Act mandates the requirement of such appeals to be heard and determined by a bench.  However, I note that there emerged weighty issues during the hearing at the Tribunal. The said issues also raise substantial question of law.

7. Since the filing of this appeal more parties have sought and have been enjoined as either the respondents or interested parties.  These parties have competing interests.

8. I find that it in the interest of justice that the appeal be disposed of a bench of uneven number of Judges.

9. I would also wish to add that I know some of the members of the 3rd interested party.  It is for this reason that I wish to be excused from the intended bench should the Honourable Chief Justice find it fit to constitute a bench.

10. Accordingly, the matter is hereby forwarded to the Honourable Chief Justice for the appointment of uneven number of judges to hear the appeal and give further directions and/or a determination. I therefore direct that the matter be placed before the Honourable Chief Justice on a date convenient to give directions.

It is so ordered.

Dated, signed and delivered in Nairobi on this 15th day of October 2020.

............................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Muriuki advocate for the Appellant

Ms Waikikitu for Mr. Mahinda for the 1st Respondent.

Mr. Kirimi for Mr. Amollo for the 2nd Respondent

Mrs. Wanyama for Mr. Walubengo for the 2nd Interested Party

Mr. Ratemo Oira for the 4th Interested Party.

Kajuju – Court Assistant