'1. The Notice of Motion dated 11th October 2024 is before the Court. It is supported by the Supporting Affidavit of Josiah Oyaro sworn on 11th October 2024 and a Supplementary Affidavit sworn on 06th December 2024.
2. The Motion seeks to stay or set aside warrants of arrest issued in execution of a decree arising from Co-operative Tribunal Case 228 of 2019. The Applicant relies on a general meeting resolution said to have been passed on 28 March 2023 and a communication dated 10 May 2023 directing withdrawal of the Tribunal cases.
3. The Respondent opposes the application through the Replying Affidavit of Jeremiah Obaga sworn on 18th November 2024 and a Notice of Preliminary Objection dated 13th November 2024. Annexed to the Replying Affidavit and marked as part of Exhibit JO3, is a copy of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020 which the Respondent relies upon to challenge this Court’s jurisdiction.
4. The Applicant filed submissions dated 06th December 2024, while the Respondent filed submissions dated 13th November 2024.
5. The Respondent contends that the Tribunal decision and resulting decree were already the subject of a prior appeal to the High Court, determined on 01st July 2021, and that this Court therefore lacks jurisdiction to entertain the matter.
6. Having considered the Motion, the affidavits sworn by the parties, the Preliminary Objection and the rival submissions filed, it is evident that certain core questions arise which must be resolved before the Court can determine the merits of the application. The Court must therefore isolate these questions so as to approach the dispute methodically and in accordance with the governing principles of jurisdiction, appellate finality, and execution law. It is against that background that the following issues present themselves for determination.
Issues for Determination
1) Whether the Preliminary Objection dated 13th November 2024 discloses a pure point of law
2) Whether this Court retains jurisdiction to entertain the present appeal and Motion in light of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020)
3) Whether the applicant’s reliance on section 27 of the Co-operative Societies Act and the alleged general meeting resolution of 28 March 2023 can lawfully defeat, suspend, or nullify a judicial decree upheld on appeal.
4) Whether the applicant has demonstrated any legal or procedural basis for stay or setting aside of the warrants of arrest.
5) What orders are appropriate in the circumstances of the case.
Analysis and Determination
1) Whether the Preliminary Objection discloses a pure point of law
7. The Preliminary Objection challenges this Court’s jurisdiction on the basis of functus officio, res judicata. A valid preliminary objection must raise only issues of law, not matters dependent upon contested evidence. The Respondent relies on the reasoning reflected in Kinuthia Eston Maina & 3 Others v Coffee Board of Kenya [2015] eKLR and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] eKLR, where the courts underscored that a preliminary objection cannot be determined where factual disputes must first be resolved.
8. Applying that distinction, the objection succeeds in part. The question whether this Court may entertain a second appeal in light of a prior High Court judgment is a pure question of law, one that depends solely on the legal effect of the 2021 judgment in Nyamira HCCA No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020). To that extent, the objection is properly taken.
9. However, the remaining grounds of objection such as the circumstances under which the warrants were obtained and other contested factual assertions cannot be resolved at the preliminary stage. The Preliminary Objection therefore succeeds only in respect of the pure legal question of jurisdiction.
2) Whether this Court retains jurisdiction
10. The Respondent’s Replying Affidavit sworn on 18th November 2024 annexes the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020). In that judgment, the High Court upheld the surcharge, affirmed the Tribunal’s jurisdiction under sections 74 and 75 of the Co-operative Societies Act, validated the Tribunal’s entry of summary judgment, and dismissed the consolidated appeals, thereby conclusively determining all issues now raised before this Court. No new surcharge order, no fresh Tribunal determination, and no statutory basis has arisen that could reopen matters settled by that decision.
11. As explained in Joseph Maburu alias Ayub v Republic [2019] KEHC 1172 (KLR), once a court has delivered a final judgment it becomes functus officio except through the appellate hierarchy. The decisions in Kinuthia Eston Maina & 3 Others v Coffee Board of Kenya (supra) and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd (supra) reinforce this position. They underscore the finality of adjudicated matters and the binding effect of steps taken within the litigation process once a competent court has rendered judgment, and make clear that a party cannot revisit issues conclusively determined whether by instituting a fresh appeal or by invoking internal resolutions.
12. In light of those principles and the settled finality of the judgment delivered on 01st July 2021, this Court is functus officio and lacks jurisdiction to entertain a fresh appeal or collateral challenge to the same Tribunal decision. The matter is equally barred by the doctrine of res judicata, the issues having been conclusively determined between the same parties by a court of competent jurisdiction.
3) Whether section 27 of the Co-operative Societies Act and the general meeting resolution can affect the decree
13. The Applicant places considerable reliance on the general meeting resolution of 28th March 2023 and invokes section 27 of the Co-operative Societies Act, asserting that the members’ directive requiring withdrawal of the Tribunal proceedings superseded all subsequent steps in execution.
14. Even though section 27 undoubtedly vests supreme authority in the general meeting in matters of a society’s internal governance, it does not clothe members with power to suspend, vary, or nullify a judicial decree. The provision regulates the internal administration of co-operative societies but it does not operate to displace, override, or arrest the effect of a decree that has been issued by a competent court and subsequently upheld on appeal. The High Court in the 2021 judgment expressly rejected similar attempts to rely on general meeting resolutions to defeat or suspend a surcharge, holding that internal decisions of members cannot override judicial decrees.
4) Whether grounds exist for stay or setting aside of warrants
15. The Applicant relies heavily on the alleged general meeting resolution of 28 March 2023 and contends that it is binding by virtue of section 27 of the Co-operative Societies Act, which vests supreme authority in the general meeting of a society. He argues that, under that provision, the members'' directive requiring withdrawal of the Tribunal proceedings supersedes all subsequent execution steps. However, that submission cannot withstand scrutiny because section 27 governs only the internal governance and management of a co-operative society but does not confer authority upon members to suspend, nullify, or override a judicial decree.
16. The warrants of arrest arise from a decree whose legality and enforceability were upheld on appeal, and in the absence of any procedural defect or irregularity in their issuance, this Court has no jurisdiction to interfere with lawful execution.
Disposition
20. Having determined the five issues arising for consideration, and for the reasons articulated in the foregoing analysis, the Court reaches the following dispositive orders:
1) It is hereby declared that, by virtue of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020), this Court is functus officio in respect of the merits of the Tribunal decision forming the subject of these proceedings
2) The present appeal, is found to be incompetent for offending the doctrines of functus officio and res judicata, and is hereby struck out in its entirety
3) The Notice of Motion dated 11th October 2024, being wholly dependent on the existence of a competent appeal and disclosing no independent legal basis upon which the warrants of arrest may be stayed or set aside, is dismissed
4) The warrants of arrest impugned in the Motion shall remain in force, there being no demonstrated procedural defect, illegality, or irregularity warranting interference by this Court
5) The Applicant shall bear the Respondent’s costs of this application
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2. The Motion seeks to stay or set aside warrants of arrest issued in execution of a decree arising from Co-operative Tribunal Case 228 of 2019. The Applicant relies on a general meeting resolution said to have been passed on 28 March 2023 and a communication dated 10 May 2023 directing withdrawal of the Tribunal cases.
3. The Respondent opposes the application through the Replying Affidavit of Jeremiah Obaga sworn on 18th November 2024 and a Notice of Preliminary Objection dated 13th November 2024. Annexed to the Replying Affidavit and marked as part of Exhibit JO3, is a copy of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020 which the Respondent relies upon to challenge this Court’s jurisdiction.
4. The Applicant filed submissions dated 06th December 2024, while the Respondent filed submissions dated 13th November 2024.
5. The Respondent contends that the Tribunal decision and resulting decree were already the subject of a prior appeal to the High Court, determined on 01st July 2021, and that this Court therefore lacks jurisdiction to entertain the matter.
6. Having considered the Motion, the affidavits sworn by the parties, the Preliminary Objection and the rival submissions filed, it is evident that certain core questions arise which must be resolved before the Court can determine the merits of the application. The Court must therefore isolate these questions so as to approach the dispute methodically and in accordance with the governing principles of jurisdiction, appellate finality, and execution law. It is against that background that the following issues present themselves for determination.
Issues for Determination
1) Whether the Preliminary Objection dated 13th November 2024 discloses a pure point of law
2) Whether this Court retains jurisdiction to entertain the present appeal and Motion in light of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020)
3) Whether the applicant’s reliance on section 27 of the Co-operative Societies Act and the alleged general meeting resolution of 28 March 2023 can lawfully defeat, suspend, or nullify a judicial decree upheld on appeal.
4) Whether the applicant has demonstrated any legal or procedural basis for stay or setting aside of the warrants of arrest.
5) What orders are appropriate in the circumstances of the case.
Analysis and Determination
1) Whether the Preliminary Objection discloses a pure point of law
7. The Preliminary Objection challenges this Court’s jurisdiction on the basis of functus officio, res judicata. A valid preliminary objection must raise only issues of law, not matters dependent upon contested evidence. The Respondent relies on the reasoning reflected in Kinuthia Eston Maina & 3 Others v Coffee Board of Kenya [2015] eKLR and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] eKLR, where the courts underscored that a preliminary objection cannot be determined where factual disputes must first be resolved.
8. Applying that distinction, the objection succeeds in part. The question whether this Court may entertain a second appeal in light of a prior High Court judgment is a pure question of law, one that depends solely on the legal effect of the 2021 judgment in Nyamira HCCA No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020). To that extent, the objection is properly taken.
9. However, the remaining grounds of objection such as the circumstances under which the warrants were obtained and other contested factual assertions cannot be resolved at the preliminary stage. The Preliminary Objection therefore succeeds only in respect of the pure legal question of jurisdiction.
2) Whether this Court retains jurisdiction
10. The Respondent’s Replying Affidavit sworn on 18th November 2024 annexes the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020). In that judgment, the High Court upheld the surcharge, affirmed the Tribunal’s jurisdiction under sections 74 and 75 of the Co-operative Societies Act, validated the Tribunal’s entry of summary judgment, and dismissed the consolidated appeals, thereby conclusively determining all issues now raised before this Court. No new surcharge order, no fresh Tribunal determination, and no statutory basis has arisen that could reopen matters settled by that decision.
11. As explained in Joseph Maburu alias Ayub v Republic [2019] KEHC 1172 (KLR), once a court has delivered a final judgment it becomes functus officio except through the appellate hierarchy. The decisions in Kinuthia Eston Maina & 3 Others v Coffee Board of Kenya (supra) and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd (supra) reinforce this position. They underscore the finality of adjudicated matters and the binding effect of steps taken within the litigation process once a competent court has rendered judgment, and make clear that a party cannot revisit issues conclusively determined whether by instituting a fresh appeal or by invoking internal resolutions.
12. In light of those principles and the settled finality of the judgment delivered on 01st July 2021, this Court is functus officio and lacks jurisdiction to entertain a fresh appeal or collateral challenge to the same Tribunal decision. The matter is equally barred by the doctrine of res judicata, the issues having been conclusively determined between the same parties by a court of competent jurisdiction.
3) Whether section 27 of the Co-operative Societies Act and the general meeting resolution can affect the decree
13. The Applicant places considerable reliance on the general meeting resolution of 28th March 2023 and invokes section 27 of the Co-operative Societies Act, asserting that the members’ directive requiring withdrawal of the Tribunal proceedings superseded all subsequent steps in execution.
14. Even though section 27 undoubtedly vests supreme authority in the general meeting in matters of a society’s internal governance, it does not clothe members with power to suspend, vary, or nullify a judicial decree. The provision regulates the internal administration of co-operative societies but it does not operate to displace, override, or arrest the effect of a decree that has been issued by a competent court and subsequently upheld on appeal. The High Court in the 2021 judgment expressly rejected similar attempts to rely on general meeting resolutions to defeat or suspend a surcharge, holding that internal decisions of members cannot override judicial decrees.
4) Whether grounds exist for stay or setting aside of warrants
15. The Applicant relies heavily on the alleged general meeting resolution of 28 March 2023 and contends that it is binding by virtue of section 27 of the Co-operative Societies Act, which vests supreme authority in the general meeting of a society. He argues that, under that provision, the members'' directive requiring withdrawal of the Tribunal proceedings supersedes all subsequent execution steps. However, that submission cannot withstand scrutiny because section 27 governs only the internal governance and management of a co-operative society but does not confer authority upon members to suspend, nullify, or override a judicial decree.
16. The warrants of arrest arise from a decree whose legality and enforceability were upheld on appeal, and in the absence of any procedural defect or irregularity in their issuance, this Court has no jurisdiction to interfere with lawful execution.
Disposition
20. Having determined the five issues arising for consideration, and for the reasons articulated in the foregoing analysis, the Court reaches the following dispositive orders:
1) It is hereby declared that, by virtue of the judgment delivered on 01st July 2021 in Nyamira High Court Civil Appeal No. 13 of 2020 (consolidated with Civil Appeal Nos. 14, 15 and 16 of 2020), this Court is functus officio in respect of the merits of the Tribunal decision forming the subject of these proceedings
2) The present appeal, is found to be incompetent for offending the doctrines of functus officio and res judicata, and is hereby struck out in its entirety
3) The Notice of Motion dated 11th October 2024, being wholly dependent on the existence of a competent appeal and disclosing no independent legal basis upon which the warrants of arrest may be stayed or set aside, is dismissed
4) The warrants of arrest impugned in the Motion shall remain in force, there being no demonstrated procedural defect, illegality, or irregularity warranting interference by this Court
5) The Applicant shall bear the Respondent’s costs of this application
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