Wamburu v Kyanjau Housing Cooperative Society [2025] KECPT 192 (KLR)

Wamburu v Kyanjau Housing Cooperative Society (Tribunal Case 1002/E903 of 2023) [2025] KECPT 192 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KECPT 192 (KLR)

Republic of Kenya

In the Cooperative Tribunal

Tribunal Case 1002/E903 of 2023

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

March 27, 2025

Between

Morris Kinuthia Wamburu

Claimant

and

Kyanjau Housing Cooperative Society

Respondent

Ruling

1. The matter before is for determination on a Notice of Preliminary Objection by the Respondent dated 11th December 2023 and the Claimant’s Notice of Motion application dated 18th October 2023.

Notice Of Preliminary Objection 2. The Respondent objects to the Claimant’s claim on the ground that the Tribunal has no jurisdiction to hear and determination of the same pursuant to Section 13(2) (a) of the Environment and Land Court Act and Section 7(b) of the Co-operative Societies Act Cap 490 of the Laws of Kenya.

3. The jurisdiction of the Tribunal is established under Section 7(b) of the Co-operative Societies Act Cap 490 Section 7(b) (1) provides that if any dispute concerning the business of a cooperative society arises:a.Among members, past members and persons claiming through members, past members and deceased members orb.Between members, past members or deceased members and the society, its committee or any officer of the society orc.Between the society and any other cooperative society, it shall be referred to the Tribunal.

4. Parties filed Written Submissions on the Preliminary Objection. The Respondent’s Submissions are dated 6th November 2014 while the Claimant’s submissions are dated 7th November 2024.

5. Our perusal of the Statement of Claim and the Response to the Statement of Claim and submissions filed by both parties we hold that:1. The Claimant seeks a declaration that the Claimant is a bonafide beneficial owner of Thika Municipality Block 18/898 and alternatively that if there is double allocation of the suit property, the Respondent to compensate the Claimant at current market value.2. The Claimant purports to make a claim on the property which is the subject of the claim, under the membership of one Mary Wathira Wamburu.3. The Claimant does not proclaim himself a member of the Respondent, hence he demand to claim through the said Mary Wathira Wamburu.4. Whereas the Respondent does not raise an issue on the membership of the said Mary Wathira Wamburu. The Respondent states in its Response that the Claimant is not a member of the Respondent, which statement the Claimant did not refute by way of a Reply to the Response.

6. Two issues that arises for our determination:Whether or not the subject matter of this claim amounts to a business of the Tribunal. The Claimant’s claim herein is for a declaration that he is the bonafide beneficial owner of the land. A matter of double allocation was raised to the Respondent by the Director of Land Administration in the letter dated22nd April 2021 whereas the issue of double allocation as raised is a matter between the society and the Director of Land Administration and as such as correctly put by the Respondent’s advocate, not a business of the Cooperative Society in terms Section 7(b) of the Act it neither is within the Tribunal’s jurisdiction to determine the ownership of such property remains an issue between a society and its members and the Tribunal has power to make a declaration of entitlement of land as between a society and its members. However there is the question of whether the Claimant is a proper party before the Tribunal.In terms of Section 7(b) (1) (b), a claim against a society can be brought to the Tribunal by a member, a past member or deceased member. In the present case, though the Claimant presents himself as a beneficiary of a deceased member, the Claimant has not provided any evidence to show that he is a legal representative of the deceased. In the absence of evidence that the Claimant’s claim to be declared entitled as a member or as a legal representative of the relevant deceased member, we find that the claimant is not a proper party before the Tribunal in terms of Section 7(b) (1) (b) of the Act. We are guided by the provisions of Rule 6 of the Cooperative Tribunal (practice and procedure) Rules 2009 which provides that the provisions of the Civil Procedure Rules (Cap21) shall apply in respect of proceedings of the Tribunal.

7. For the reasons aforesaid, we hold that we do not have jurisdiction to determine an issue of land ownership or entitlement between a society and a non-member.

8. Consequently jurisdiction is everything, we down our tools. The Preliminary Objection dated 11th December 2023 is therefore upheld, the Tribunal therefore has no jurisdiction in the matter.The claim is therefore dismissed in its entirety. File ordered as closed.

JUDGMENT 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 JONAHMwangi Benson advocate for the RespondentIgecha advocate for the ClaimantHON. B. KIMEMIA CHAIRPERSON SIGNED 27. 2.2025