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ELCDismissedEldoret Environment and Land Case No. 65 of 2016· [2016] KEELC 310 (KLR)

National Bank of Kenya Limited v Tachasis Wholesalers [2016] KEELC 310 (KLR)

Environment and Land Court
28 October 2016
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to take over National Bank of Kenya's case because the dispute was not actually about land, and the magistrates' court could continue hearing it.

What this practically means

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Executive summary

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National Bank of Kenya Limited applied by Notice of Motion dated 6.7.2016 for the transfer of Eldoret CMCC No. 904 of 2012 (Tachasis Wholesalers Ltd v National Bank of Kenya) to the Environment and Land Court at Eldoret for trial and final disposition. The bank argued that the plaintiff had filed two suits over the same cause of action through different advocates, that the plaintiff admitted the loan in the magistrates' court suit but denied it in ELC No. 65 of 2016, that the debt of Kshs.40,829,246.85 was accruing interest, and that the lower court lacked pecuniary jurisdiction. The respondent filed grounds of opposition contending the court had no jurisdiction to grant the orders sought. The court, Ombwayo J, held that its jurisdiction derives from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, limited to disputes relating to the environment and the use and occupation of, and title to land. Perusing the pleadings in the CMCC suit, the court found the plaintiff there merely sought information and documents regarding a loan, so the matter was not a land or environment dispute ripe for transfer. Alternatively, the suit was filed on 7 November 2012 and was pending before the lower court when the Chief Justice's Practice Directions were made; under Rule 7, magistrates' courts continue hearing such cases within their pecuniary jurisdiction. On pecuniary jurisdiction, no monetary value was pleaded. The application was dismissed with costs.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over the subject matter of the lower court suit

Holding

The ELC lacks jurisdiction to accept transfer of the CMCC suit because the dispute as pleaded is not related to environment or land

Reasoning

The court derives its jurisdiction from Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act, confining it to disputes relating to the environment and the use and occupation of, and title to land. On perusal of the pleadings in CMCC No. 904 of 2012, the plaintiff appears to be seeking information/documents regarding a loan advanced, which is not a land or environment dispute. Transferring such a matter to the ELC would exceed the court's jurisdiction.

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02

Whether the lower court could validly continue hearing the suit under the Chief Justice's Practice Directions

Holding

The suit, filed on 7 November 2012, was pending before the lower court when the Practice Directions were made and may proceed there

Reasoning

Section 22 of the Sixth Schedule preserved pending judicial proceedings, and the Chief Justice's Practice Directions of 2012 (gazette notice 16268) and 2014 (gazette notice 5178) provided that magistrates' courts continue hearing land and environment cases within their pecuniary jurisdiction. The CMCC suit predates the directions, so it could properly continue in the lower court.

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03

Pecuniary jurisdiction of the lower court

Holding

No basis was shown to doubt the lower court's pecuniary jurisdiction as no monetary value was pleaded

Reasoning

The applicant argued the lower court lacked pecuniary jurisdiction given the disputed sum of about Kshs.40 million. However, the court found the plaintiff's claim in the lower court is not based on any monetary value; the plaintiff merely seeks documents executed in respect of the loan, so no pecuniary jurisdictional impediment arises.

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Legal principles established

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  • Magistrates' courts continue to hear and determine all cases relating to the environment and the use and occupation of and title to land, whether pending or new, in which they have the requisite pecuniary jurisdiction
  • Under Section 22 of the Sixth Schedule to the Constitution, judicial proceedings pending before any court at its commencement were to continue being heard by the same or a corresponding court

Court orders

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  1. 1.The Notice of Motion dated 6.7.2016 seeking transfer of Eldoret CMCC No. 904 of 2012 to the Environment and Land Court is dismissed
  2. 2.The applicant to pay costs of the application

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 162(3)
  • Constitution of KenyaSection 22 of the Sixth Schedule
  • Environment and Land Court ActSection 13
  • Practice Directions on Proceedings Relating to the Environment and the use and occupation of title to land (Gazette Notice 16268)Rule 7
  • Practice Directions (Gazette Notice 5178 of 28th July 2014)
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya and section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "National Bank of Kenya Limited v Tachasis Wholesalers [2016] KEELC 310 (KLR)", Case Analysis (2016). Eldoret Environment and Land Case No. 65 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/310/eng@2016-10-28

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