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ELCStruck Out· [2019] KEELC 4993 (KLR)

Said Mohamed Abdalla v Bank of Africa (K)Ltd & another [2019] KEELC 4993 (KLR)

Environment and Land Court
17 January 2019
983 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 struck out a borrower's suit challenging loan interest, confirming it cannot hear commercial banking disputes over charged land.

What this practically means

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Executive summary

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The 1st defendant raised a preliminary objection dated 25th May 2018 contending that the Environment and Land Court lacked jurisdiction because the suit raised purely commercial disputes arising from a loan secured by a charge over land. The plaintiff had sued seeking a declaration that the loan arrears and the bank's system of levying interest were unlawful, and an injunction restraining the defendants from transferring or dealing with the remaining security, PLOT NO.11046/II/MN, over which the bank allegedly threatened to exercise statutory power of sale despite having received over Kshs.35,000,000 against an initial facility of Kshs.28,376,204.48. The court, relying on the Court of Appeal's decision in Cooperative Bank of Kenya v Patrick Kangethi Njuguna, held that a charge is a disposition securing repayment of money, not a 'use' of land, and that the real cause of action - a complaint about interest levied on loan arrears - was a question of accounts. The issues did not seek to establish the use, occupation of, or title to land. Applying the Lillian S 'down my tools' doctrine, the court held it was barred from determining the matter, which belonged in the High Court Commercial Division. The preliminary objection was upheld, the application and suit struck out, with costs to the defendants. Judgment delivered at Mombasa on 17th January 2019 by C. Yano J.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute rooted in a loan/charge and interest computation

Holding

No; the dispute is commercial and falls within the High Court's jurisdiction, not the ELC

Reasoning

The court applied the Court of Appeal's decision in Cooperative Bank of Kenya v Patrick Kangethi Njuguna, holding that charging land is a disposition, not a land use, and that a dispute over interest on loan arrears is a question of accounts. The issues raised do not seek to establish use, occupation of, or title to land. Lacking jurisdiction, the court could not determine the suit.

p. 1

Legal principles established

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  • A charge over land is a disposition securing repayment of money and does not constitute 'use' of land, so disputes over charging and loan accounts fall outside the jurisdiction of the Environment and Land Court
  • A court without jurisdiction must down its tools

Court orders

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  1. 1.The preliminary objection dated 25th May 2018 is upheld
  2. 2.The application and the suit are struck out
  3. 3.Costs to the defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 260
  • Environment and Land Court ActSection 13
  • Land ActSection 150
  • Land ActSection 2
  • Land ActSection 80

Cases cited (2)

  • Cooperative bank of Kenya -v- Patrick Kangethi Njuguna & 5 Others
    (2017) eKLR
  • Owners of the Motor Vessel 'Lillian S' -v- Caltex Oil (Kenya) Ltd
    (1989) KLR 1
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya and the Environment and Land Court Act (Section 13); Section 150 of the Land 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, "Said Mohamed Abdalla v Bank of Africa (K)Ltd & another [2019] KEELC 4993 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4993/eng@2019-01-17

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