Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherCase No 91 of 2016· [2016] KEELC 32 (KLR)

Conier Limited v Catholic Diocese of Homabay Registered Trustees [2016] KEELC 32 (KLR)

Environment and Land Court
4 November 2016
JMJ. M. Mutungi
2,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that unpaid construction contract money claims belong in the High Court, not the Environment and Land Court, so the case was transferred rather than thrown out.

What this practically means

#

Executive summary

#
The plaintiff filed a plaint dated 6th April 2016 claiming Kshs. 22,283,914/70 from the defendant for unpaid construction works under a contract to construct Centenary Hostels on Plot No. South Kamagambo/Kanyajuok/71, together with an injunction restraining the defendant from continuing or contracting out the remaining construction, and general damages for damaged reputation. Simultaneously it sought a temporary injunction under Order 40 Rules 1 & 4 and Order 51 of the Civil Procedure Rules. The defendant filed a notice of preliminary objection dated 29th April 2016 contending that the dispute, being a pure contract claim for breach of a construction contract, did not fall within Article 162(2)(b) of the Constitution or Sections 13 and 30 of the Environment and Land Court Act, that the contract provided for arbitration, and that the court lacked jurisdiction and should strike out the suit. The defendant also denied owing the plaintiff money, save monies owed directly to suppliers. The court held jurisdiction is conferred by the Constitution and statute and cannot be presumed, and that a claim for payment of money for services rendered under a construction contract, with no dispute over title, use, occupation of, or any interest in the land, falls outside the court's jurisdiction. Applying the Owners of Motor Vessel 'Lillian S' principle, the court sustained the preliminary objection. However, it declined to strike out the suit because the pleadings showed the plaintiff intended to file at the Homa Bay High Court, and striking out would affront Articles 48 and 50 on access to justice and fair hearing. The court ordered the file transferred to the Homa Bay High Court, with costs of the preliminary objection in the cause.

Key legal issues

#
01

Scope of the Environment and Land Court's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act

Holding

The court lacks jurisdiction over a claim for payment of monies under a construction contract where no interest in, use, occupation of, or title to land is disputed

Reasoning

The court examined the pleadings and found the plaintiff's case founded on a construction contract for hostels on the defendant's land. The claim was only for unpaid work certified by a Quantity Surveyor. No dispute touching use, occupation or title existed, title being acknowledged in the defendant, and the plaintiff claimed no interest in the land. Such a money claim for services falls outside the matters enumerated in Section 13 and Article 162(2)(b).

p. 4
02

Whether the suit should be struck out for want of jurisdiction

Holding

The court declined to strike out and instead transferred the file to the High Court at Homa Bay

Reasoning

The court noted the pleadings showed the suit was originally intended for filing at the Homa Bay High Court, with 'Homa Bay' cancelled and 'Kisii' inserted. Striking out would be a draconian step that offends Articles 48 and 50 of the Constitution on access to justice and fair hearing, so transfer rather than striking out was the appropriate remedy once lack of jurisdiction was established.

p. 4

Legal principles established

#
  • Jurisdiction of the court is conferred by the Constitution and statute and cannot be inferred, implied or presumed
  • A claim purely for payment of money for services rendered pursuant to a contract does not fall within Article 162(2)(b) disputes over use, occupation of, or title to land
  • Constitutional rights of access to justice and fair hearing militate against striking out a suit merely for want of jurisdiction; transfer to a competent forum is preferred

Court orders

#
  1. 1.The defendant's preliminary objection that the court lacks jurisdiction is sustained
  2. 2.The court declined to strike out the suit
  3. 3.The file is to be transferred to Homa Bay High Court for hearing and determination of the plaintiff's application for injunction and the suit
  4. 4.The cost of the preliminary objection is in the cause

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 162(1), (2)(a), (2)(b), (3); Articles 160(1), 159(1)(e), 1(1) and (3), 2(1), (3) and (4), 3, 48, 50
  • Environment and Land Court Act, 2011Sections 13(1), (2)(a)-(e), 30(1) and (2)
  • Civil Procedure ActSections 3, 3A and 63
  • Civil Procedure RulesOrder 40 Rules 1 & 4; Order 51

Cases cited (2)

  • Macfoy –vs- United Africa Co. Ltd
    [1961] PC 1169
  • Owners of Motor Vessel "Lillian S" –vs- Caltex Oil Kenya Limited
    [1989] KLR 1
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 13 and 30 of the Environment and Land Court Act, 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Conier Limited v Catholic Diocese of Homabay Registered Trustees [2016] KEELC 32 (KLR)", Case Analysis (2016). Case No 91 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/32/eng@2016-11-04

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