Kioko & 6 others v Ojwang & 17 others (Civil Appeal 78 of 2019) [2024] KECA 1424 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that disputes between co-operative society members and their management must go to the Co-operative Societies Tribunal, not the High Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court was right in upholding the preliminary objections raised by the respondents
Key legal issues
#Whether the dispute between members and the management committee of a co-operative society falls within the jurisdiction of the Co-operative Societies Tribunal under section 76 of the Co-operative Societies Act
Yes. The dispute clearly involved members of a co-operative society and its business; the High Court had no original jurisdiction and the proper forum was the Tribunal.
The appellants' plaint complained of the management committee's failure to convene an AGM, hold elections and vacate office, and attacked the appointment of the task force. The court held this was a dispute between members and their management team touching the business of the society within section 76, which confers exclusive original jurisdiction on the Tribunal, with the High Court's role confined to appeals under section 81.
The meaning of the expression 'business of the society' in section 76
The expression is not confined to internal management but covers every activity of the society within the ambit of its by-laws and rules.
The court noted the Act does not define 'business of the society' and that judicial opinion has been divided. It adopted the long-standing interpretation in Gatanga Coffee Growers Co-operative Society Ltd v Gitau, per Harris and Simpson J., that the phrase covers every activity of the society within its by-laws and rules, which brings management and election disputes within the Tribunal's jurisdiction.
Whether the preliminary objections were properly taken as pure points of law
Yes. The objections went to jurisdiction and required no ascertainment of facts.
Relying on the Tanzanian authority Karata Ernest & Others v Attorney General, the court reaffirmed that a preliminary objection must consist of a point of law pleaded or arising clearly from the pleadings, and that objections to jurisdiction qualify. Jurisdiction, being a threshold issue, may be raised at any stage and by any party or the court itself.
Legal principles established
#- Disputes concerning the business of a Co-operative Society, including disputes between members and their society's management, fall within the exclusive original jurisdiction of the Co-operative Societies Tribunal under section 76 of the Co-operative Societies Act; the High Court's jurisdiction is appellate only under section 81(1)
- Where Parliament has provided a clear statutory procedure for dispute resolution, that procedure must be followed
- A preliminary objection cannot be raised if any fact has to be ascertained in deciding it; it must consist purely of a point of law
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal; the appeal challenged a High Court ruling striking out the suit on preliminary objections, the High Court's own appellate jurisdiction arising under section 81(1) of the Co-operative Societies Act
Relief refused
#The appellants' appeal against the striking out of their suit and application for injunction
The dispute concerned the business of a Co-operative Society and fell within the exclusive jurisdiction of the Co-operative Societies Tribunal; the High Court had no original jurisdiction
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The High Court is not clothed with original jurisdiction in Co- operative Societies disputes, but can hear parties by way of appeals only as per section 81(1) of the Co-operatives Act
Where a court is drained of the jurisdiction to entertain a matter, the proceedings fiowing from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency, and objectivity injected into it, will be marooned in the intractable web of nullity.
a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings.
where Parliament has through statute provided a clear procedure for redress or resolution of disputes, that procedure ought and must be followed
Accordingly, the appeal is devoid of merit and we dismiss it with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kioko & 6 others v Ojwang & 17 others (Civil Appeal 78 of 2019) [2024] KECA 1424 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1424/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.