Mbaluka v Muindi & another (Tribunal Case E090 of 2024) [2024] KECPT 1872 (KLR) (21 November 2024) (Ruling)
Neutral citation:
[2024] KECPT 1872 (KLR)
Republic of Kenya
Tribunal Case E090 of 2024
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki, M Chesikaw & PO Aol, Members
November 21, 2024
Between
Nicholas Mawia Mbaluka
Claimant
and
Samuel W. Muindi & another
Respondent
Ruling
1.The matter before us for determination is the Notice of Preliminary Objection by the 1st and 2nd Respondents dated 8th May 2024 filed on even date. Therein, the 1st and 2nd Respondents oppose the Notice of Motion Application dated 7th February 2024 on the following grounds;1.That this Tribunal lacks jurisdiction to entertain or adjudicate suits pertaining to contracts for sale/purchase of land and/or title of land.2.That this Tribunal lacks jurisdiction to adjudicate over this matter as the same is not a dispute as provided for under section 76(1) and (2) of the Cooperative Societies Act Cap 490.3.The parties filed written submissions dated 26th August 2024 were filed on 12th September 2021. The Claimant’s written submissions dated 9th September 2024 were filed on the same date.
Analysis and Determination
2.The 1st and 2nd Respondent’s notice of preliminary objection was instigated by the Claimant’s notice of motion application dated 7th February 2024 wherein the Claimant seeks, inter alia, the following orders;1.That pending the hearing and determination of this application, the 1st and 2nd Respondents by themselves or through their agents, servants, or assigns be restrained from trespassing upon, constructing, developing, selling, offering for sale, transferring, leasing, charging or in any way interfering with the property known as LR No Machakos/Konza North Block 1/1794 or any party thereof in default of which the said persons be evicted forthwith.2.That pending the hearing and determination of this suit, the 1st and 2nd Respondents by themselves or through their agents, servants, or assigns be restrained from trespassing upon, constructing, developing, selling or offering for sale, transferring, leasing, charging or in any way interfering with the property known as LR No Machakos/Konza North Block 1/1794 or any part thereof and from harassing, threatening, intimidating, or in any way causing disharmony to the claimant or his workers.
3.The subject matter of the application and claim herein is the property known as LR No Machakos Konza North Block 1/1794 We have considered the documents filed by the parties in respect to the preliminary objection including the submissions and have only one issue to determine, that is, whether or not this Tribunal has jurisdiction to hear and determine this application or matter, being a and matter.
4.This Tribunal derives its jurisdiction from Section 76 of the Cooperative Societies Act, Cap 490 of the Laws of Kenya. Section 76(1) determines the disputes that are referred to the Tribunal and states that if disputes 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.
5.On whether this jurisdiction lacks jurisdiction to entertain or adjudicate suits pertaining to contracts for sales/purchases of land and/or title to and, from the documents before us, the and in dispute is said to have been under the management of the interested party was allocated to the 1st Respondent by the Interested Party and sub-divided by the Interested Party.
6.On a balance of probability, we find that the subject property was part of the business of the interested party. There is no provision in the Cooperative Societies Act limiting the jurisdiction of the Tribunal to hear and determine land matters as a court of original jurisdiction, provided that the land matter arises out of the business of the Society. Section 76(2) of the Cooperative Societies Act provides for disputes that are included as disputes and not the only disputes. We agree with the submissions of the Claimant that the legislature intended that disputes concerning Cooperative Societies must be handled by the Cooperative Tribunal original jurisdiction with appeal lying to the High Court, a position similarly held by the interested party.
7.For veracity, we used to address the decision of this Tribunal cited by the 1st Respondent in support of his preliminary objection, being the decision in the case of Nicholas Osenda and 55 others v Gusii Farmers’ Co-operative Union Ltd and 5 others [2021] eKLR (Tribunal Case No 11 of 2020) on which the 1st Respondent quotes the Tribunal or statement that “we find that if we are to entertain the instant claim, this Tribunal on shall be acting in excess of its jurisdiction, and thus will be committing an act ultra vires thus illegal ab initio”.
8.We have noted recent developments in jurisdiction in the area of jurisdiction of the Tribunal whether High Court and Court of Appeal decisions have progressively ousted the jurisdiction of the High Court and courts of equal status from usurping the original jurisdiction of the Tribunal. The position we held in the cited case therefore is no longer tenable. We have thus made pronouncements of the Tribunal’s jurisdiction Grace Mwikali Somba v Muka Mukuu Farmers Cooperation Society and another (Tribunal Case No 164 of 2021) among other cases. Further, in regards to Section 76(2) of the Cooperative Societies Act, no evidence has been produced to prove that the dispute herein is not between the persons or groups of persons envisaged under the subsection. We are well settled in our position that in the upshot, we hold that the Notice of Preliminary Objection dated 18th May 2024 lacks merit and hereby dismiss the same with costs.
9.Mention for Pre-trial direction on 14th April 2025.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF NOVEMBER, 2024.HON. B. KIMEMIA - CHAIRPERSON SIGNED 21.11.2024HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 21.11.2024HON. BEATRICE SAWE - MEMBER SIGNED 29.8.2024HON. FRIDAH LOTUIYA - MEMBER SIGNED 21.11.2024HON. PHILIP GICHUKI - MEMBER SIGNED 21.11.2024HON. MICHAEL CHESIKAW - MEMBER SIGNED 21.11.2024HON. PAUL AOL - MEMBER SIGNED 21.11.2024Tribunal Clerk Mutai JonahMitambo advocate for the ClaimantMs. Wachira for the 1st RespondentMs. Wachira Advocate: We seek leave to appealTribunals Order:Leave granted for appeal.Mention for pre-trial direction on 14th April 2025.