Nicholas Osenda & 55 others v Gusii Farmers Co-operative Union Limited & 5 others [2021] KECPT 246 (KLR)

REPUBLIC OF KENYA

IN THE CO-OPERATIVE TRIBUNAL AT NAIROBI

TRIBUNAL CASE NO. 11 OF 2020

NICHOLAS OSENDA & 55 OTHERS..........................................................................CLAIMANT

-VERSUS-

GUSII FARMERS CO-OPERATIVE UNION LIMITED.............................1^ST RESPONDENT

THE CABINET SECRETARY, CO-OPERATIVE DEVELOPMENT.......2^ND RESPONDENT

THE COMMISSIONER FOR CO-OPERATIVES......................................3^RD RESPONDENT

THE CABINET SECRETARY, MINISTRY OF LANDS............................4^TH RESPONDENT

THE COMMISSIONER FOR LANDS.........................................................5^TH RESPONDENT

THE ATTORNEY GENERAL.......................................................................6^TH RESPONDENT

RULING

1. The 2^ND, 3^RD, 4^TH and 6^TH Respondents’ Notice of Preliminary Objection dated 14^th February 2020 and filed on 26^th June 2020 has been brought under Section 76(1)(c) and Section 77 of the Co-operative Societies Act Cap 490 of the Laws of Kenya. The said Respondents have challenged the jurisdiction of this Tribunal in the instant Claim, which is about ownership of land parcel No. Nyansiongo/Gesima Block 7487/2 also referred as Simbauti Farm [hereinafter referred to as “suit property”].

2. The Claimants contend that the suit property has been sold, subdivided and alienated unprocedurally, and the Claimants have sought an array of prayers against the Respondents, including an Order of revocation of title.

3. The 2^nd, 3^rd, 4^th and 6^th Respondents now seek Orders to strike out the entire Claim, on the grounds that the Tribunal lacks jurisdiction and that this is a matter suited for the Environment and Labour Relations Court, established under Article 163(2)(b) of the Constitution. The said Respondents have cited various authorities, which we have carefully considered.

4. On the Claimants’ part, they posit that the matter is properly before this Tribunal, and have prayed that the Preliminary Objection be dismissed with costs.

5. We have perused the record, scrupulously, and hereby issue our Ruling on the Preliminary Objection dated 4^th June 2021.

ISSUES FOR DETERMINATION

6. Having carefully considered the documents and arguments by both parties in their Written Submissions, we have framed only one issue for determination:

(a) Whether the Tribunal has jurisdiction over this matter;

7. We have read and considered the robust Submissions of the parties and their respective authorities, and the same are well thought and elaborate, with strong legal arguments. We may not quote all the decisions in this Ruling, but that in no way does not mean that we did not consider the said Submissions.

ANALYSIS OF ISSUES

8. We now proceed to analyse the issues as follows:

(a) Whether the Tribunal has jurisdiction over this matter

Section 76 of the Co-operative Societies Act, Cap 490 of the Laws of Kenya provides as follows:

76. Disputes

1) If any dispute concerning the business of a co-operative society arises—

(a) among members, past members and persons claiming through members, past members and deceased members; or

(b) between members, past members or deceased members, and the society, its Committee or any officer of the society; or

(c) between the society and any other co-operative society,

it shall be referred to the Tribunal.

Jurisdiction is everything, and without which, the court [read Tribunal] must down its tools [vide: Owners of the Motor Vessel “Lillian S” -vs- Caltex Oil (Kenya) Ltd [1989] eKLR].

9. In determining if a Claim is within the jurisdiction of the Tribunal, we assess the parties therein, and the nature of prayers sought.

10. This Tribunal is further guided by the case of Anisminic vs Foreign Compensation Commission (1969) 1 All ER 208 at 233, where Lord Pearce held as follows on lack of jurisdiction:

“Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step out of its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the enquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity. 

 This instant claim invites the Tribunal to audit the actions of persons outside the ambit of Section 76 of the Co-operative Societies Act, and seeks prayers that are also in excess of what is contemplated in Section 76(2) thereof, which provides that:

(2)  A dispute for the purpose of this section shall include—

(a)  a claim by a co-operative society for any debt or demand due to it from a member or past member, or from the nominee or personal representative of a deceased member, whether such debt or demand is admitted or not; or

(b)  a claim by a member, past member or the nominee or personal representative of a deceased member for any debt or demand due from a co-operative society, whether such debt or demand is admitted or not;

(c)   a claim by a Sacco society against a refusal to grant or a revocation of licence or any other due, from the Authority.”

11. We find that if we are to entertain the instant Claim, this Tribunal shall be acting in excess of its jurisdiction, and thus will be committing an act ultra vires, thus illegal ab initio.

12. We therefore find that this Tribunal lacks jurisdiction, and the matter should be filed in another forum due to the parties involved and prayers sought. We thus Order that the Objection dated 14^th February 2020 be allowed, and the Claim before us dismissed. We proceed to down our tools.

ORDERS

13. We therefore Order as follows:

a. The Respondent’s Notice of Preliminary Objection dated 14^th February 2020 is hereby allowed.

b. Suit  is  dismissed  in its  entirety.

c. Each party to bear their own costs;

RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF SEPTEMBER, 2021.

Hon. B. Kimemia    Chairperson   Signed  2.9.2021

Hon. J. Mwatsama  Deputy Chairperson Signed  2.9.2021

Mr. Gitonga Kamiti  Member   Signed  2.9.2021

Mr. B. Akusala   Member   Signed  2.9.2021

Tribunal Clerk   R. Leweri

Makau  Advocate  for Claimant present

No appearance  for  Respondent

Hon. B. Kimemia   Chairperson   Signed  2.9.2021