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Court of AppealPartially AllowedCivil Appeal No. 269 of 2014· [2019] KECA 361 (KLR)

Kenya Planters Co-operative Union Limited v Githara Chuchu & 473 other Members of Gititu Coffee Growers Co-operative Society Limited & another [2019] KECA 361 (KLR)

Court of Appeal of Kenya
27 September 2019
5,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck down a Kshs. 13.2 million High Court payment order because the same dispute was already before a co-operative arbitration tribunal.

What this practically means

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Executive summary

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This first appeal challenged two inter-related rulings of the High Court (Ojwang, J) dated 17th February 2006 and 12th July 2006 in HC Civil Case No. 3619 of 1983, which ordered the appellant to appear and answer questions concerning Kshs. 13,251,549.95 allegedly held for the 1st respondent, and thereafter to pay that sum with interest from 19th April 1983. The appellant contended the trial court lacked jurisdiction because the dispute was pending before an arbitral panel pursuant to orders referring the matter to the Commissioner for Co-operatives under section 80 of the Co-operative Societies Act. The respondents supported the trial court's rulings. The Court of Appeal, re-appraising the record under Rule 29(1) of the Court of Appeal Rules, traced a consistent line of orders by Aluoch, J, Olekeiwua, J and O'kubasu, J referring the dispute to the Commissioner for arbitration, and found the 1st respondent had itself submitted to and participated in that process. The consensual withdrawal of the 1st respondent's appeal (No. 124 of 2001) against Mitei, J's ruling declining jurisdiction sanctified those orders. The Court held that until jurisdiction was wrestled back from the arbitral process, the trial court had no jurisdiction to entertain the application of 3rd August 2004; the proceedings and both impugned orders were therefore a nullity. The appeal was allowed, with costs of the appeal and the High Court ordered to abide the result of the arbitration. The judgment was signed under Rule 32(9) following Azangalala, JA's retirement.

Key legal issues

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01

Want of jurisdiction in the High Court by reason of pending arbitration

Holding

The trial court had no jurisdiction to entertain the application because the issues in controversy were pending before an arbitral panel; both the proceedings and the impugned orders were a nullity

Reasoning

The court traced the record and found sustained referrals of the dispute to the Commissioner for Co-operatives for arbitration by Aluoch, J, Olekeiwua, J and O'kubasu, J, and directions by consent. The 1st respondent had submitted to the arbitral process. The appeal against Mitei, J's ruling declining jurisdiction was withdrawn by consent, sanctifying those orders. Jurisdiction could not be assumed until wrestled back from the arbitral process.

p. 7
02

Effect of withdrawal of appeal against the ruling declining jurisdiction

Holding

The consensual withdrawal of Appeal No. 124 of 2001 sanctified Mitei, J's orders crystallising that the court had no jurisdiction while the matter was pending before the arbitral panel

Reasoning

The 1st respondent had appealed against Mitei, J's ruling upholding the Commissioner's preliminary objection but withdrew the appeal by consent. It matters not that the preliminary objection was raised by a non-party; that could only have been interrogated on the appeal, which was abandoned. The respondent was therefore deemed to have abandoned the right to complain.

03

First appellate court's mandate on re-appraisal of evidence

Holding

As a first appeal, the Court is obliged to reconsider and assess the evidence and reach its own conclusions, and is not bound by the trial judge's findings of fact

Reasoning

Relying on Mwangi v Wambugu [1984] eKLR 453 and Musera v Mwechelesi & another [2007] 2 KLR, the Court restated that although an appellate court is reluctant to interfere with findings of fact by a trial judge who heard and observed the witnesses, it is obligated to reconsider and assess the evidence and need not accept findings based on no evidence or wrong principles.

p. 5

Legal principles established

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  • A court must down tools the moment it forms the opinion that it lacks jurisdiction; proceedings and orders made without jurisdiction are a nullity
  • Where a dispute is properly pending before an arbitral process under section 80 of the Co-operative Societies Act, the High Court has no jurisdiction to entertain the same issues until jurisdiction is restored to it
  • The withdrawal of an appeal against a ruling crystallises that ruling and a party is deemed to have abandoned the right to complain of it

Court orders

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  1. 1.Appeal allowed
  2. 2.The impugned orders and proceedings of 17th February 2006 and 12th July 2006 declared a nullity
  3. 3.Costs of the appeal and the High Court proceedings to abide the result of the arbitration
On appeal from
High Court of Kenya at Nairobi
HC Civil Case No. 3619 of 1983
Jurisdiction invoked
First appeal under Rule 29(1) of the Court of Appeal Rules; the judgment was signed under Rule 32(9) of the Court of Appeal Rules following the retirement of Azangalala, JA

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Planters Co-operative Union Limited v Githara Chuchu & 473 other Members of Gititu Coffee Growers Co-operative Society Limited & another [2019] KECA 361 (KLR)", Case Analysis (2019). Civil Appeal No. 269 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/361/eng@2019-09-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.