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ELCDismissedNot stated in the judgment· [2019] KEELC 2434 (KLR)

Alphose Yankulije v One Twiga Road Limited & 2 others [2019] KEELC 2434 (KLR)

Environment and Land Court
9 July 2019
CYC.K. Yano
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it can hear property sale disputes even when a bank charge is mentioned, protecting buyers' injunctions.

What this practically means

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Executive summary

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The 2nd and 3rd Defendants filed a notice of preliminary objection dated 27th May 2019 seeking to vacate interim injunction orders issued on 16th May 2019 and to strike out the plaintiff's application dated 15th May 2019 and the entire suit. They argued that the Environment and Land Court lacked jurisdiction because the dispute concerned mortgages and charges, which they contended were reserved for the High Court, relying on Cooperative Bank of Kenya v Patrick Kangethe Njuguna and Kisimani Holdings v Fidelity Bank. They further argued that the sale agreement between the 1st Defendant and the plaintiff was unenforceable against the 3rd Defendant (the chargee bank) for want of consent under Section 59 of the Land Registration Act and Section 87 of the Land Act. The plaintiff, who had contracted in January 2016 to buy Apartment 2A2 on LR MN/I/11278 for Kshs.31,500,000/- and paid a Kshs.9,000,000/- deposit, sought declarations, injunctions, specific performance and, alternatively, a refund. The court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, and, associating itself with Munyao Sila J in Lydia Nyambura Mbugua v Diamond Trust Bank, held that the Court of Appeal's decision in Cooperative Bank did not require the ELC to down its tools whenever a charge is mentioned. The predominant issue was the sale of an apartment and specific performance - squarely land disputes. The preliminary objection was dismissed with costs to the plaintiff, leaving the interim injunction orders intact.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over disputes involving charged land

Holding

The court has jurisdiction because the predominant issue is the sale of an apartment and specific performance, which are land disputes under Section 13 of the ELC Act; the mere presence of a charge does not oust jurisdiction.

Reasoning

The court traced its jurisdiction to Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, which extends to disputes over contracts granting enforceable interests in land. Adopting Munyao Sila J in Lydia Nyambura Mbugua v Diamond Trust Bank, it held that the Court of Appeal in Cooperative Bank v Kangethe Njuguna did not lay down that the ELC must down its tools whenever a charge is mentioned; the CoA's jurisdictional holding turned on the dispute being essentially about accounts. Here no issue of accounts arises, only an alternative refund prayer.

p. 3
02

Whether the preliminary objection should succeed and the suit be struck out

Holding

The preliminary objection was not well grounded and was dismissed with costs.

Reasoning

Having found that the suit falls within its jurisdiction, the court was not persuaded that the preliminary objection had merit. The objection sought vacation of interim injunction orders and striking out of the suit and application, but since jurisdiction lay with the ELC, the objection failed. The issue of want of chargor's consent was not separately determined, as the objection was dismissed on the jurisdictional ground.

p. 3

Legal principles established

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  • The Environment and Land Court does not lose jurisdiction merely because a charge or mortgage features in the pleadings; what matters is the predominant issue in the dispute.
  • A dispute over the sale of an apartment erected on charged land, with a claim for specific performance, falls within the jurisdiction of the Environment and Land Court under Section 13 of the ELC Act.

Court orders

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  1. 1.The 2nd and 3rd Defendants' notice of preliminary objection dated 27th May 2019 is dismissed with costs to the plaintiff
  2. 2.The interim orders of injunction granted on 16th May 2019 remain in place

Authorities

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Legislation

  • Constitution of KenyaArticle 162
  • Environment and Land Court ActSection 13
  • Land Registration Act No.3 of 2012Section 59
  • Land Act No.6 of 2012Section 87

Cases cited (4)

  • Cooperative Bank of Kenya Limited –v- Patrick Kangethe Njuguna & 5 Others
    (2017) eKLR
  • Kisimani Holdings Limited & Another –v- Fidelity Bank Limited
    (2013) eKLR
  • Lydia Nyambura Mbugua –v- Diamond Trust Bank & Another
    (2018) eKLR
  • R Karisa Chengo & 2 Others
    (2017) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act No. 19 of 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alphose Yankulije v One Twiga Road Limited & 2 others [2019] KEELC 2434 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2434/eng@2019-07-09

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