Nyali Construction & Electrical Services Limited & 3 others v Barclays Bank of Kenya Limited & 2 others [2021] KEELC 1772 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed it can hear disputes about charges over land, dismissing a bank's bid to move the case to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute centred on a charge and a chargee's statutory power of sale
The ELC has jurisdiction; a charge is an interest in land, and the Land Act and Land Registration Act expressly vest jurisdiction over such disputes in the ELC
Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over disputes relating to land and instruments granting enforceable interests in land. Section 2 of the Land Act defines a charge as an interest in land. Sections 150 of the Land Act and 101 of the Land Registration Act assign disputes under those statutes to the ELC. It is illogical to say the ELC lacks jurisdiction over charges when the governing land statutes vest that jurisdiction in the ELC.
Whether Cooperative Bank of Kenya Ltd v Patrick Kangethe Njuguna ousts ELC jurisdiction over charge-related disputes
It does not; that case concerned accounts as the predominant issue, per the court's earlier reasoning in Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited
The court reaffirmed its reading that the Court of Appeal in Cooperative Bank v Kangethe decided that the High Court had jurisdiction because the predominant issue was accounts, not the charge. That distinguishing feature is absent here; the prayers challenge the validity of charges and title to land, and no prayer for accounts exists in the pleadings.
Whether the nature of the prayers in the two suits falls within ELC jurisdiction
Yes; the prayers - declarations of invalidity of charges, injunctions, nullification of sale, rectification of title, damages for loss of use - are the core matters of the ELC
Even on the pleadings alone, the suits seek declarations over title and charges, injunctions relating to land, rectification of the register, and damages for loss of use of land. These are disputes the ELC hears daily and for which its jurisdiction is uncontested; the applicant's contention would absurdly deny the court jurisdiction over its core mandate.
Legal principles established
#- A charge is an interest in land, and disputes relating to charges fall within the jurisdiction of the Environment and Land Court
- The ELC cannot decline jurisdiction merely because a land dispute involves a charge; the Land Act and Land Registration Act vest jurisdiction over such disputes in the ELC
- Jurisdiction is conferred by law and cannot be conferred by consent of the parties
- Where the ELC has jurisdiction over a core land issue, it may also deal with incidental accounts that cannot be severed from the dispute
Court orders
#- 1.The 1st defendant's application dated 18 November 2020 seeking transfer of the suit to the Mombasa High Court, Commercial and Admiralty Division, is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyali Construction & Electrical Services Limited & 3 others v Barclays Bank of Kenya Limited & 2 others [2021] KEELC 1772 (KLR)", Case Analysis (2021). Mombasa ELC No. 308 of 2015 (consolidated with Mombasa ELC No. 309 of 2015), formerly Mombasa HCCC No. 283 of 2008 and Mombasa HCCC No. 315 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1772/eng@2021-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.