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ELCAllowedELC Case (Mombasa) — suit commenced by plaint filed 13 June 2019 (number not stated in judgment)· [2019] KEELC 790 (KLR)

Fatma Hassan Hadi v Diamond Trust Bank (K) Ltd [2019] KEELC 790 (KLR)

Environment and Land Court
13 November 2019
MSMUNYAO SILA
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked a bank from auctioning a family home because the wife never consented to the loan charge over the property.

What this practically means

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Executive summary

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The plaintiff sued by plaint filed 13 June 2019 claiming to be the wife of Khalil Hud Ahmed, married under Islamic law in 1999, with whom she purchased the suit land in 2008 and established their matrimonial home. Upon seeing a newspaper advertisement on 30 May 2019 for a public auction of the property scheduled for 14 June 2019, she learnt her husband had charged the land to the defendant bank to secure a loan. She pleaded she never gave spousal consent, and sought an interlocutory injunction restraining the sale pending trial. The defendant raised a preliminary objection on jurisdiction, relying on Cooperative Bank vs Patrick Kangethe, and contended the suit was sub judice Mombasa HCCC No. 131 of 2014, in which the chargor (husband) had previously litigated; it asserted spousal consent had been obtained from one Faiza Brek Said. The court held it had jurisdiction under Section 13(2)(d) of the Environment and Land Court Act, a charge being an instrument granting an enforceable interest in land, distinguishing Cooperative Bank vs Kangethe as an accounts dispute. The suit was not sub judice since the parties and issues differed — the identity of the spouse was never canvassed in the earlier case. The plaintiff displayed her marriage certificate, unchallenged; spousal consent is mandatory before charging matrimonial property; the bank did not claim her consent. A prima facie case, irreparable loss and balance of convenience favouring preservation were found. The court enjoined the bank from selling or disposing of the land and from registering any disposition until the suit is finalized, with costs to the plaintiff.

Key legal issues

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01

Jurisdiction of the ELC over challenges to a charge

Holding

The court has jurisdiction; the dispute concerns the validity of the charge for want of spousal consent, not a commercial transaction or accounts.

Reasoning

Section 13(2)(d) of the Environment and Land Court Act confers power to hear disputes relating to land and instruments granting enforceable interests in land. A charge is such an instrument, created under the Land Registration Act and the Land Act, both of which vest jurisdiction in the ELC. Cooperative Bank vs Kangethe was distinguished as concerning accounts, properly before the High Court. The court followed its own earlier ruling in Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Ltd.

p. 2
02

Sub judice

Holding

The suit is not sub judice HCCC No. 131 of 2014; different parties and issues.

Reasoning

The earlier suit was brought by Mr. Khalil, who challenged statutory notices; the question of who his spouse was never canvassed there. Here, a person claiming to be his spouse contests the charge for lack of her spousal consent. Res judicata/sub judice requires same parties and issues, which is absent.

p. 2
03

Injunction principles

Holding

Prima facie case, irreparable loss and balance of convenience all established; injunction granted.

Reasoning

The plaintiff exhibited her marriage certificate, unchallenged by the defendant, establishing on the face of it that she is Mr. Khalil's spouse. The bank did not claim to have obtained her consent to the charge. If the property is sold the matrimonial home would be lost, an irreparable loss; in any event the balance of convenience favours preserving the property.

p. 2

Legal principles established

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  • The Environment and Land Court has jurisdiction over disputes on the validity of a charge, since a charge is an instrument granting an enforceable interest in land.
  • Spousal consent is required before matrimonial property can be subjected to a charge.
  • Sub judice/res judicata does not apply where the parties and issues are distinct from the earlier suit.

Court orders

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  1. 1.Injunction stopping the bank from offering for sale, selling, or entering into any disposition in respect of the suit land until the suit is heard and finalized
  2. 2.Order stopping any registration of any disposition in the register of the suit land until the case is heard and finalized
  3. 3.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Land ActSection 79(3)
  • Environment and Land Court ActSection 13(2)(d)
  • Land Registration Act

Cases cited (3)

  • Cooperative Bank vs Patrick Kangethe
    (2017) eKLR
  • Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Limited
    Nakuru ELC Case No. 296 of 2013 (2018) eKLR
  • Khalid Hud Mohamed vs Diamond Trust of Kenya
    Mombasa HCCC No. 131 of 2014
Jurisdiction invoked
Section 13(2)(d) of the Environment and Land Court Act — disputes relating to land and instruments granting enforceable interests in land

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, "Fatma Hassan Hadi v Diamond Trust Bank (K) Ltd [2019] KEELC 790 (KLR)", Case Analysis (2019). ELC Case (Mombasa) — suit commenced by plaint filed 13 June 2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/790/eng@2019-11-13

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