Mutuku v Mkono Poa Housing Co-operative Society Ltd (Environment and Land Case E003 of 2023) [2025] KEELC 6236 (KLR)
The bottom line
#The Environment and Land Court in Machakos struck out a Kshs. 18 million land sale claim because disputes between co-operative society members and their society must go to the Co-operative Tribunal.
What this practically means
#Executive summary
#Key legal issues
#Whether the dispute over the sale agreement falls within section 76 of the Co-operative Societies Act as a dispute concerning the business of the society
Yes. The business of a society is to be discerned from its constitution or by-laws, and the phrase 'business of the society' covers every activity within its by-laws, including sale of land; the suit should have been filed before the Co-operative Tribunal.
The court considered section 76 of the Act and the Gatanga Coffee Growers authority defining 'business of the society'. The Plaintiff admitted the Defendant is a registered deposit-taking co-operative society and that he is its member. Applying the view that where statutes provide clear dispute-resolution procedures, those must be strictly followed, and noting the Tribunal is the final forum below the High Court's appellate jurisdiction, the court held the matter belonged to the Tribunal.
Whether the preliminary objection on jurisdiction, though previously dismissed as premature, could properly be determined at the close of the case
Yes. A preliminary objection may be raised at any time before final conclusion of the case, and the jurisdictional issue ought to be determined first.
The court noted the earlier ruling of Justice Christine Ochieng dismissed the objection as premature because membership and amounts outstanding required ascertainment. Relying on Mukisa Biscuits and the Mwaura case, it held that a preliminary objection raising a pure point of law can be brought at any time before final conclusion, and that jurisdiction goes to the root and should be established first.
Whether the High Court/Court can assume original jurisdiction over co-operative disputes where section 81 provides appellate jurisdiction from the Tribunal
No. Section 76 ousts original jurisdiction in such disputes; the only jurisdiction open is appellate under section 81.
Following Charles Keragita Arwenya, the court reasoned that since the High Court is the final court in co-operative matters on appeal, it would be improper for it also to assume original jurisdiction over the same disputes. The proper forum for a member's claim against the society is the Tribunal.
Legal principles established
#- The words 'the business of the society' in section 76 of the Co-operative Societies Act are wide enough to include the business of sale of land by the society.
- Section 76 of the Co-operative Societies Act ousts the original jurisdiction of the High Court (and by extension this Court) in disputes involving co-operative societies and their members; only appellate jurisdiction under section 81 remains.
Court orders
#- 1.Preliminary objection upheld
- 2.Plaintiff's suit struck out with costs to the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction; preliminary objection under Section 76(2) of the Co-operative Societies Act, Cap 490
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutuku v Mkono Poa Housing Co-operative Society Ltd (Environment and Land Case E003 of 2023) [2025] KEELC 6236 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6236/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.