Wanjao v Too & 6 others (Tribunal Case 687/E022 of 2022) [2025] KECPT 259 (KLR) (29 April 2025) (Ruling)
Neutral citation:
[2025] KECPT 259 (KLR)
Republic of Kenya
Tribunal Case 687/E022 of 2022
BM Kimemia, Chair, Janet Mwatsama, Vice Chair, B Sawe, F Lotuiya, P. Gichuki & M Chesikaw, Members
April 29, 2025
Between
John Michael Wanjao
Claimant
and
Wilson Too the Chairman
1st Respondent
Leseru Tebeson Farmers society
2nd Respondent
Dr Charles Walekhwa
3rd Respondent
Kiberen Kisorio
4th Respondent
Fred Kiryongi Tororei
5th Respondent
Stephen Kiprono Meli
6th Respondent
Miriam Kubai
7th Respondent
Ruling
1.The Notice of Motion Application dated 15th August, 2024 is brought under Sections 77, 78 and 79 of the Cooperative Societies Act and Article 159 of the Constitution seeking among others orders:1.Spent2.That pending the hearing interparties of the Application, there be temporary orders of stay of proceedings in the matter.3.That the proceedings in the matter be stayed pending the hearing and determination of ELC Petition No. 7 of 2020
2.The Application was based on the grounds raised by the Affidavit of Wilson Too which stated:i.That the dispute involves land references 27206/3 and 27206/4ii.That the ownership of land references 27206/3 and 27206/4 is also being disputed between Leseru Tebeson Farmers Society and the Ministry of Defenceiii.That Leseru Tebeson Farmers Society has filed ELC Petition No. 7 of 2020 which is pending hearing and coming up for hearing on 17th October 2024iv.That the Claimant is claiming to be given a share of land references 27206/3 and 27206/4 whose ownership to Leseru Tebeson Farmers Society has not been ascertainedv.That the Tribunal stands the risk of making orders in futility in as far as ELC Petition No. 7 of 2020 has not been concludedvi.That the Claimant is aware of the Pending dispute of the two properties between Leseru Tebeson Farmers Society and the Ministry of Defencevii.That the two parcels of land borders the Kenya Army Training College and the Eldoret Bullet Factory at Maili Tisa in Eldoretviii.That in the year 2018, the Ministry of Defence filed reference in the National Land Commission and the registration of the two parcels to Leseru Tebeson Farmers Society was revoked in a manner that did not evoke fair administration actionsix.That Leseru Tebeson Farmers Society being dissatisfied with the orders of the National Land Commission filed among other cases ELC Petition No. 7 of 2020x.That ELC Petition No. 7 of 2020 seeks to among others orders to quash the orders of the National Land Commission and restore the land to Leseru Tebeson Farmers Societyxi.That the suit has been filed prematurely as the acts complained of, especially the sub-division of the suit properties cannot be done until issues of ownership are resolvedxii.That there is no land currently capable of being shared out to the Claimant or any other member of Leseru Tebeson Farmers Societyxiii.That the Tribunal needs to save its precious time by not engaging in proceedings whose orders may not be enforceable.xiv.That the Application has been made in utmost good faith.
3.The 2nd 3rd and 6th Respondents later filed a Notice of Preliminary Objection dated 6th September, 2024 raising preliminary objection to the Claim on the grounds:a.That the Honorable Tribunal lacks jurisdiction to determine the matter in terms of Section 76 and 81 of the Cooperative Societies Act, as Leseru Tebeson Farmers Society is not a cooperative society within the definition of Cooperative Societies Act. Cap. 490 Laws of Kenya since Leseru Tebeson Farmers Society is registered under Cap 108 Laws of Kenya.b.That the Claim is bad in law, misconceived and discloses no reasonable cause of action as against the 2nd 3rd and 6th Respondent thus rendering it fatal and incurably defective.
4.This Tribunal on 21st August, 2024 gave directions for the Application to be served with further directions given on 9th September, 2025 for the Application to be canvassed by way of Written Submissions.
5.The Claimant filed his Replying Affidavit stating among others;i.That the Application is without any basis and does not have legs to stand onii.That the claim before the Tribunal does not touch on land alone but also raises several other fundamental issues which can only be addressed by the Tribunal and not the ELC Petition referred to.iii.That the 1st Respondent admits being the chairman of Leseru Tebeson Farmers Society and the claim touches on the validity of his chairmanship in the society.iv.That he is also raising the validity of the 2nd to 6th Respondents being office bearers of the society.v.That he believes that the parcels of land reference numbers 27206/3 and 27206/4 belong to Leseru Tebeson Farmers Society and that the 1st Respondent has not provided any correspondences or annexures to the contrary and that title has not been revoked or canceled.vi.That he is also raising the fundamental questions of the illegalities on the part of the 1st Respondent who has continued to sell the society's land, receiving more than Kenya shillings 20 million from unsuspecting Kenyans in the name of availability of land which he is denying ownership in the Application.vii.That the 1st Respondent has not provided any minutes of the society's meetings or audited accounts for the last 15 years.viii.That the 1st Respondent has not held any elections for the society for the last 10 years and the tribunal has powers to order for fresh elections of new office bearers pending the determination of the suitix.That the 1st Respondent being the chairman has continued to illegally recruit new members to the society and removing the names of the initial members all in the name of availability of land for subdivision.x.That the title issued to the society was surrendered to Chief Land Registrar for purposes of subdivision and which process is still pending because of the ELC petition in court.xi.That the Tribunal should order the 1st Respondents to table audited accounts and annual returns for the society for the past 15 years.
6.The Claimant filed his written submissions to both the Notice of Motion and Notice of Preliminary Objection dated 5th December, 2024 stating among others:i.That his Replying Affidavit raised issues that can be addressed by the Tribunal by way of a hearing.ii.That the ELC Petition in Eldoret deals with the ownership of land and not the issues raised or the 1st Respondent.iii.That the illegalities committed by the 1st Respondent as Chairman can be handled by the Tribunal.iv.That the Claimant is not a party to the ELC Petition and the Orders that may arise from the Petition cannot be in direct response to the concerns raised by the Claimant in this case.v.That the Application dated 15th August 2024 is misplaced, lacks merit, and should be disallowed in its entirety with costs.vi.That nowhere has the Respondents annexed a copy of the Petition to demonstrate their concern for the Tribunal to appreciate that indeed the Petition is directly related to this case.vii.That the 2nd 3rd and 6th Respondents did not file any response to the Claimviii.That the Claim is properly before the Tribunal by virtue of Section 76 of the Cooperative Societies Act.ix.That the only business involving Leseru Tebeson Farmers Society is that of land and by the fact that the Chairman and its officials received money from the Claimant for purchase of shares in the land, then the claim over the same shares can be properly and adequately addressed by the Tribunal.
7.The 1st Respondent filed his Written Submissions dated 28th November, 2024 stating among others:i.That there is no controversy about the existence of ELC Petition No. 7 of 2020ii.That there is also no controversy that the Petition touches on land references numbers 27206/3 and 27206/4iii.That the Claimant has not adduced any evidence to back the claim that the Respondents are subdividing the land, have sold society money or are recruiting new members and removing the names of the old membersiv.That the 1st Respondent has annexed title deeds for land references numbers 27206/3 and 27206/4 which titles clearly indicate that the two have been canceledv.That Leseru Tebeson Farmers Society is a land buying society and has no other business other than the ownership of land parcels 27206/3 and 27206/4, and minus those parcels, the claim before the Tribunal is hollow as the existence of the society is purely dependent on the two land parcels.vi.That there is a huge risk of the Tribunal making an order in futility and also which contradicts the outcome of the ELC Petition No. 7 of 2020vii.That an ELC court has a higher jurisdiction than the Tribunal and once its handling a matter between the same parties on the same matter in issue, the ELC court takes precedence over the Tribunal.
Has the threshold for a temporary stay been met?
8.Even before this Tribunal addresses the issue as to whether the threshold for a temporary stay has been met, it has to deal with the issue at to whether it has jurisdiction.
9.This Tribunal first need to be certain on the registration regime of Leseru Tebeson Farmers Society. Is it a society registered under the Cooperative Societies Act, Cap. 490 Laws of Kenya or a society registered under Cap 108 Laws of Kenya. This is important because, if Leseru Tebeson Farmers Society is a society under Cap 108 Laws of Kenya then this Tribunal lacks jurisdiction to proceed further to consider the claim as raised in the Statement of Claim, and in the same breath deal with the pending Notice of Motion Application dated 15th August, 2024. If we don’t have jurisdiction, then we have to down our tools on the whole suit
9.On any question that touches on jurisdiction, we are guided by the case of Phoenix of E.A. Assurance Company Limited v M. Thiga t/a Newspaper Service [2019] eKLR which made it clear that :
10.From the documents filed on record, specifically letter dated 24th July, 2019 reference SOC/48946 from Joanne Ogolla (Assistant Registrar of Societies) to the DCI Headquarters, it is clear to us that Leseru Tebeson Farmers Society is a society under Cap 108 Laws of Kenya and not a co-operative society under the Cooperative Societies Act, Cap. 490 Laws of Kenya, and as such we lack jurisdiction to proceed with both the Application and the suit.Final Orders:1.The Statement of Claim dated 19th August, 2022 and the Notice of Motion dated 15th August, 2022 dismissed for want of jurisdiction. File ordered as closed.
RULING SIGNED, DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF APRIL, 2025.HON. B. KIMEMIA - CHAIRPERSON SIGNED 29.4.2025HON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29.4.2025HON. BEATRICE SAWE - MEMBER SIGNED 29.4.2025HON. FRIDAH LOTUIYA - MEMBER SIGNED 29.4.2025HON. PHILIP GICHUKI - MEMBER SIGNED 29.4.2025HON. MICHAEL CHESIKAW - MEMBER SIGNED 29.4.2025Tribunal Clerk JemimahNo appearance for claimantNo appearance for RespondentHON. J. MWATSAMA - DEPUTY CHAIRPERSON SIGNED 29.4.2025