( Being an appeal from the ruling of Kakamega CM’s court by Hon. J.J Masiga in MCCC E253/24)
This appeal arises from the ruling delivered on 27.5.2025 by Hon. J.J Masiga, PM in Kakamega CMCC E253 of 2024 on the appellant's preliminary objection dated 7.1.25.
The objection was premised on the contention that the honorable court lacked jurisdiction to hear and determine the matter on the ground that the dispute was between a Sacco and its member, and by virtue of section 76 of the Cooperative Societies Act, read together with section 67 of the Sacco Societies Act, the dispute fell within the exclusive jurisdiction of the Cooperative Tribunal.
In the impugned ruling, the learned trial magistrate held that the preliminary objection did not raise a pure point of law, reasoning that it required an inquiry into whether the respondent was a member of the appellant Sacco, an issue which in his view could only be adjudicated upon full hearing.
Aggrieved by the decision, the appellant lodged a memorandum of appeal dated 12.6.25, challenging the ruling on five grounds which are as set as below:
I. That the learned trial magistrate erred in law and in fact by failing to consider the legal implications of Sections 33(1) and (5) of the Sacco Societies Act, particularly the fact that pursuant to the said provision a Sacco such as the appellant herein could only advance loans to its members.
II. That the learned magistrate erred in law and in fact by holding that the issue of whether or not the respondent was a member of the appellant Sacco was a question of fact requiring evidentiary proof at the hearing which finding was contrary to the documentary evidence presented by the respondent himself, particularly the offer letter dated 11.6.2024 that severally referred to the respondent as a member of the Appellant Sacco.
III. That the learned magistrate erred in law and in fact in reaching the finding that the preliminary objection did not raise a pure point of law on the basis that the issue of whether or not the respondent was a member of the Appellant Sacco was a question of fact which was contrary to proper construction of the objection which was raised on the grounds that the trial court was not seized of jurisdiction to hear and determine the matter which is a pure point of law.
IV. That the learned magistrate erred in law and in fact in dismissing the appellant’s preliminary objection which was in total disregard to the provisions of section 76 of the Cooperative Societies Act as read with section 67 of the Sacco Societies Act which confers jurisdiction to hear and determine disputes between Sacco Societies and its members as is the case in the trial matter to the Cooperative Tribunal established under the provisions of Cooperative Societies Act.
V. That the trial magistrate erred in law in fact by failing to consider or sufficiently consider submissions made on behalf of the appellant and the binding authorities relied upon in that respect in support of the appellant’s Notice of Preliminary Objection dated 7.1.2025 and thereby arriving at a manifestly wrong decision.
The appeal was canvassed by way of written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate grossly misdirected himself in holding that the issue, whether the respondent was a member of the appellant Sacco, was in dispute.
That the trial magistrate ought to have been guided solely by the pleadings and evidence on record to determine whether the respondent’s membership to the appellant was in dispute.
The appellant’s case is that the suit concerned a loan facility advanced to the Respondent by the Appellant Sacco. Upon default in repayment, the Appellant sought to recover the outstanding sums by repossessing motor vehicle registration number KDQ 016G, which had been offered as security. That the dispute squarely related to the loan agreement between the parties. The appellant further submitted that the respondent could not have been granted a loan by the appellant if he was not a member of the appellant Sacco. The appellant referred the court to the provisions Sections 33 (1) and (5) of the Sacco Societies Act, 2012.
That the respondent’s receipt of a loan facility from the Appellant conclusively, by law, established his membership in the Sacco. The appellant referred the court to the letter of offer annexed as the respondent’s document which is alleged to refer to the respondent as a member.
The appellant referred the court to section 76 of the Cooperative Societies Act as read together with section 67(3) of the Sacco Societies Act, which expressly provide that it is only the Cooperative Tribunal that has exclusive jurisdiction to hear and determine disputes relating to the business of a Sacco society. The appellant cited the case of Mwalimu National Sacco Limited & another -v- Abigael Kerubo Moraa [2021] eKLR
RESPONDENT’S SUBMISSIONS
The respondent submitted that there is nothing to show that he is a member of the appellant and that is an issue that would call for examination of evidence. The respondent contend that the preliminary objection did not meet the criteria set out in the celebrated case of Mukisa Biscuit -v- West End Distributors Ltd (1969)
EA 696
ANALYSIS AND DETERMINATION.
From the record, the only issue for determination is whether the learned magistrate erred in law and in fact in failing to allow the preliminary objection. The appellant’s preliminary objection which was rejected was grounded on the understanding that the appellant, being a Sacco, can only grant credit facilities to its members and that if the respondent was not a member of the appellant Sacco, he would not have accessed the credit facilities the subject of the dispute in this suit. While there is no dispute that section 76 of the Cooperative Societies Act as read with section 67(3) of the Sacco Societies Act clearly provide that it is only the Cooperative Tribunal that has exclusive jurisdiction to hear and determine a dispute relating to the Sacco business and in particular between a Sacco and its member, the question is whether the respondent was a member of the appellant.
The respondent (plaintiff) in his plaint dated 11.12.2024 pleaded as follows:
3. The plaintiff/Applicant purchased motor vehicle registration number KDQ 016G for a total of Kshs. 6,146,500 from the defendant through a loan facility from the defendant.
From a reading of the plaint, there is nothing to show that the respondent is a member of the appellant Sacco. Even from the letter of offer which has been alluded to by appellant, there is nothing on the face of it to prove that the respondent is a member of the appellant Sacco. The appellant is yet to file a defence to the plaintiff’s claim and the issue whether or not the respondent is a member of the appellant, will call for examination of the evidence.
In Oraro -v- Mbaja (2005) 1 KLR 141 the court considered what constitutes a preliminary objection and held as follows:
“The principle is abundantly clear, a’ preliminary objection’ correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principles, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
The effect of the case law cited above, is that, for one to succeed in putting up a preliminary objection, it must meet the following criteria: It must be pleaded by one party and admitted by the other, must be a matter of law which is capable of disposing off the suit; must not be blurred by factual details calling for evidence; must not call upon the court to exercise discretion.’’
It is my considered finding that the issues raised by the appellant were questions of facts as they called for the court to examine the evidence on record. A preliminary objection should arise by clear implication out of pleadings or on a point of law which has been pleaded. Where the court is being called upon to ascertain facts or make assumptions, including that a Sacco can only grant credit facilities to its members, then that is not a point to be canvassed as a preliminary objection.
I am in agreement with the trial magistrate that the issues raised by the appellant were wrongly brought as a preliminary objection. A preliminary objection must arise expressly or by implication from pleadings. The issues raised by the appellant including determining whether the respondent is a member of the appellant, cannot be determined without calling for evidence. The court would need to examine Sacco membership forms or the appellant’s records or any other form of evidence to determine whether the respondent was a member of the appellant.
Due to the foregoing, it is my finding that the preliminary objection as raised by the appellant had no basis and the lower court was right in refusing to entertain it.
The upshot is that the appeal herein lacks merit and is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 30 th JULY 2026
D.O. ONYANGO
JUDGE
2
This appeal arises from the ruling delivered on 27.5.2025 by Hon. J.J Masiga, PM in Kakamega CMCC E253 of 2024 on the appellant's preliminary objection dated 7.1.25.
The objection was premised on the contention that the honorable court lacked jurisdiction to hear and determine the matter on the ground that the dispute was between a Sacco and its member, and by virtue of section 76 of the Cooperative Societies Act, read together with section 67 of the Sacco Societies Act, the dispute fell within the exclusive jurisdiction of the Cooperative Tribunal.
In the impugned ruling, the learned trial magistrate held that the preliminary objection did not raise a pure point of law, reasoning that it required an inquiry into whether the respondent was a member of the appellant Sacco, an issue which in his view could only be adjudicated upon full hearing.
Aggrieved by the decision, the appellant lodged a memorandum of appeal dated 12.6.25, challenging the ruling on five grounds which are as set as below:
I. That the learned trial magistrate erred in law and in fact by failing to consider the legal implications of Sections 33(1) and (5) of the Sacco Societies Act, particularly the fact that pursuant to the said provision a Sacco such as the appellant herein could only advance loans to its members.
II. That the learned magistrate erred in law and in fact by holding that the issue of whether or not the respondent was a member of the appellant Sacco was a question of fact requiring evidentiary proof at the hearing which finding was contrary to the documentary evidence presented by the respondent himself, particularly the offer letter dated 11.6.2024 that severally referred to the respondent as a member of the Appellant Sacco.
III. That the learned magistrate erred in law and in fact in reaching the finding that the preliminary objection did not raise a pure point of law on the basis that the issue of whether or not the respondent was a member of the Appellant Sacco was a question of fact which was contrary to proper construction of the objection which was raised on the grounds that the trial court was not seized of jurisdiction to hear and determine the matter which is a pure point of law.
IV. That the learned magistrate erred in law and in fact in dismissing the appellant’s preliminary objection which was in total disregard to the provisions of section 76 of the Cooperative Societies Act as read with section 67 of the Sacco Societies Act which confers jurisdiction to hear and determine disputes between Sacco Societies and its members as is the case in the trial matter to the Cooperative Tribunal established under the provisions of Cooperative Societies Act.
V. That the trial magistrate erred in law in fact by failing to consider or sufficiently consider submissions made on behalf of the appellant and the binding authorities relied upon in that respect in support of the appellant’s Notice of Preliminary Objection dated 7.1.2025 and thereby arriving at a manifestly wrong decision.
The appeal was canvassed by way of written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate grossly misdirected himself in holding that the issue, whether the respondent was a member of the appellant Sacco, was in dispute.
That the trial magistrate ought to have been guided solely by the pleadings and evidence on record to determine whether the respondent’s membership to the appellant was in dispute.
The appellant’s case is that the suit concerned a loan facility advanced to the Respondent by the Appellant Sacco. Upon default in repayment, the Appellant sought to recover the outstanding sums by repossessing motor vehicle registration number KDQ 016G, which had been offered as security. That the dispute squarely related to the loan agreement between the parties. The appellant further submitted that the respondent could not have been granted a loan by the appellant if he was not a member of the appellant Sacco. The appellant referred the court to the provisions Sections 33 (1) and (5) of the Sacco Societies Act, 2012.
That the respondent’s receipt of a loan facility from the Appellant conclusively, by law, established his membership in the Sacco. The appellant referred the court to the letter of offer annexed as the respondent’s document which is alleged to refer to the respondent as a member.
The appellant referred the court to section 76 of the Cooperative Societies Act as read together with section 67(3) of the Sacco Societies Act, which expressly provide that it is only the Cooperative Tribunal that has exclusive jurisdiction to hear and determine disputes relating to the business of a Sacco society. The appellant cited the case of Mwalimu National Sacco Limited & another -v- Abigael Kerubo Moraa [2021] eKLR
RESPONDENT’S SUBMISSIONS
The respondent submitted that there is nothing to show that he is a member of the appellant and that is an issue that would call for examination of evidence. The respondent contend that the preliminary objection did not meet the criteria set out in the celebrated case of Mukisa Biscuit -v- West End Distributors Ltd (1969)
EA 696
ANALYSIS AND DETERMINATION.
From the record, the only issue for determination is whether the learned magistrate erred in law and in fact in failing to allow the preliminary objection. The appellant’s preliminary objection which was rejected was grounded on the understanding that the appellant, being a Sacco, can only grant credit facilities to its members and that if the respondent was not a member of the appellant Sacco, he would not have accessed the credit facilities the subject of the dispute in this suit. While there is no dispute that section 76 of the Cooperative Societies Act as read with section 67(3) of the Sacco Societies Act clearly provide that it is only the Cooperative Tribunal that has exclusive jurisdiction to hear and determine a dispute relating to the Sacco business and in particular between a Sacco and its member, the question is whether the respondent was a member of the appellant.
The respondent (plaintiff) in his plaint dated 11.12.2024 pleaded as follows:
3. The plaintiff/Applicant purchased motor vehicle registration number KDQ 016G for a total of Kshs. 6,146,500 from the defendant through a loan facility from the defendant.
From a reading of the plaint, there is nothing to show that the respondent is a member of the appellant Sacco. Even from the letter of offer which has been alluded to by appellant, there is nothing on the face of it to prove that the respondent is a member of the appellant Sacco. The appellant is yet to file a defence to the plaintiff’s claim and the issue whether or not the respondent is a member of the appellant, will call for examination of the evidence.
In Oraro -v- Mbaja (2005) 1 KLR 141 the court considered what constitutes a preliminary objection and held as follows:
“The principle is abundantly clear, a’ preliminary objection’ correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principles, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
The effect of the case law cited above, is that, for one to succeed in putting up a preliminary objection, it must meet the following criteria: It must be pleaded by one party and admitted by the other, must be a matter of law which is capable of disposing off the suit; must not be blurred by factual details calling for evidence; must not call upon the court to exercise discretion.’’
It is my considered finding that the issues raised by the appellant were questions of facts as they called for the court to examine the evidence on record. A preliminary objection should arise by clear implication out of pleadings or on a point of law which has been pleaded. Where the court is being called upon to ascertain facts or make assumptions, including that a Sacco can only grant credit facilities to its members, then that is not a point to be canvassed as a preliminary objection.
I am in agreement with the trial magistrate that the issues raised by the appellant were wrongly brought as a preliminary objection. A preliminary objection must arise expressly or by implication from pleadings. The issues raised by the appellant including determining whether the respondent is a member of the appellant, cannot be determined without calling for evidence. The court would need to examine Sacco membership forms or the appellant’s records or any other form of evidence to determine whether the respondent was a member of the appellant.
Due to the foregoing, it is my finding that the preliminary objection as raised by the appellant had no basis and the lower court was right in refusing to entertain it.
The upshot is that the appeal herein lacks merit and is dismissed with costs.
DATED, SIGNED AND DELIVERED THIS 30 th JULY 2026
D.O. ONYANGO
JUDGE
2