Kenya Railways Corporation v Mamusu Enterprises Ltd & 3 others [2020] KEELC 2854 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over commercial disputes in the ELC
ELC No. 267 of 2014 is a commercial dispute over which the ELC lacks jurisdiction following the Court of Appeal's decision in Co-operative Bank of Kenya v Patrick Kangethe Njuguna [2017] eKLR; jurisdiction lies with the High Court.
The dispute in ELC No. 267 of 2014 commenced by Eldoret Hotel Limited against Eco Bank Kenya Limited was commercial in nature. Before the Court of Appeal's decision of 12th October 2017, such matters were filed in the ELC, and the consolidation order reflected that earlier position. Once the Court of Appeal clarified that commercial disputes fall to the High Court, the ELC was bound and could no longer retain the suit.
Effect of participation in the consolidation proceedings
Counsel's participation in the proceedings leading to the consolidation order does not bar the applicant from moving the Court to set it aside, because jurisdiction cannot be conferred by consent.
Kenya Railways Corporation argued that Eco Bank's participation in the consolidation proceedings barred it from seeking to unsettle the order. The Court rejected this, holding that the consolidation order reflected the jurisdictional position prevailing before the Court of Appeal's 2017 decision, and since jurisdiction cannot be divested or conferred by consent, the Motion was a legitimate attempt to comply with the appellate verdict.
Jurisdiction over ELC No. 632 of 2012
The dispute in ELC No. 632 of 2012 over ownership of Eldoret Municipality/Block 3/58 falls squarely within the ELC's jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act.
Kenya Railways Corporation sued Mamusu Enterprises Ltd and others over title to the suit land. The pleadings confirmed the dispute was over ownership of land, which falls squarely within the Environment and Land Court's jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, so that suit properly remains before the ELC.
Legal principles established
#- Jurisdiction in commercial disputes, including mortgage realization disputes following Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, lies with the High Court and not the Environment and Land Court.
- Jurisdiction cannot be divested or conferred by consent of the parties; participation in proceedings leading to a consolidation order does not bar a party from seeking to set it aside on jurisdictional grounds.
- The Environment and Land Court is bound by Court of Appeal decisions.
Court orders
#- 1.The order of 11th June, 2015 consolidating Eldoret ELC No. 267 of 2014 and 632 of 2012 is hereby set aside.
- 2.Eldoret ELC No. 267 of 2014, being a commercial dispute, is ordered to be separated from the consolidated record and transferred to the High Court Eldoret for hearing and determination, with a mention date to be fixed before the duty Judge, High Court, Eldoret.
- 3.Each party bears their own costs in the application.
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Railways Corporation v Mamusu Enterprises Ltd & 3 others [2020] KEELC 2854 (KLR)", Case Analysis (2020). Eldoret ELC No. 267 of 2014 (consolidated with Eldoret ELC No. 632 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2854/eng@2020-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.