Mathew Namusei Chahasi v Cooperative Bank Limited & another [2021] KEELC 624 (KLR)

The court traced jurisdiction from Article 162(2)(b) and (3) of the Constitution to the Environment and Land Court Act, Section 13(1)-(3), which confers original and appellate jurisdiction over environmental and land disputes, including disputes relating to public, private and community land and contracts or instruments granting enforceable interests in land. Jurisdiction must be ascertained before a court proceeds to the merits.

Distinguishing Cooperative Bank v Kangethe Njuguna, the court held that while a charge is an interest in land and the ELC is the only court with jurisdiction over disputes arising from instruments created under the Land Act and Registration of Titles Act, issues of rendering accounts and collection of levies and dues stand alone within the Commercial Division of the High Court.

Reading the pleadings, witness statement and affidavits, the Applicant's complaint concerned periodic statements, reconciliation of accounts, excessive interest, penalties and the duplum rule. He affirmed the charge by part-payment of Kshs 4,000,000 and did not dispute the charge instrument; allegations of fraud, coercion, illegality or matrimonial property were ancillary attempts to disguise the real issue of accounts.

The court criticized counsel for lifting paragraphs 25, 26, 27, 35, 36 and 41 of the Cooperative Bank of Kenya judgment verbatim and presenting them as his own thinking, adding only two sentences, and advised counsel to be intellectually honest and give credit to sources of information given to the courts.