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ELCStruck OutNot stated in judgment (suit filed 16th February 2017)· [2021] KEELC 2816 (KLR)

Stella Kavutha Muthoka & another v Kenya Women Microfinance Bank Ltd [2021] KEELC 2816 (KLR)

Environment and Land Court
18 June 2021
4,292 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner's suit to stop a bank from auctioning charged land was struck out because it was filed in the wrong court.

What this practically means

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Executive summary

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The Defendant bank filed a Notice of Motion dated 9th October 2020 seeking striking out of the Plaintiffs' suit on the ground that the Environment and Land Court lacked jurisdiction. The suit, filed on 16th February 2017, sought a permanent injunction restraining the Defendant from selling and/or auctioning the charged properties Kitui Municipality/Block III/290 and Kitui Municipality/Block I/90, and a declaration that the advertisement for sale by public auction was unlawful, premature and in breach of Sections 90, 96 and 97 of the Land Act, statutory notices not having issued. The Defendant contended that Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act do not confer jurisdiction over disputes relating to charged properties, which lie with the High Court under Article 165, and that a suit filed in a court without jurisdiction cannot be transferred. The Plaintiffs opposed, relying on the same provisions and arguing that the Court of Appeal's decision in the Co-operative Bank case had not ousted the court's jurisdiction. The court held, following the binding decision of the Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna, that a charge does not constitute 'use of land' under Article 162(2)(b), and that where the predominant issue is the exercise of the statutory power of sale and issuance of statutory notices, jurisdiction lies with the High Court. The court further held, on the authority of the Supreme Court in Albert Chaurembo Mumba and the Court of Appeal in Phoenix of E.A. Assurance v S.M. Thiga, that a suit filed without jurisdiction is a nullity ab initio and cannot be transferred, even by consent. The court therefore allowed the application and struck out the Plaintiffs' suit with costs, and ordered the Plaintiffs to pay the costs of the application. Judgment delivered virtually at Machakos on 18th June 2021 by O. A. Angote, Judge.

Key legal issues

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01

Jurisdiction of the ELC over disputes on exercise of statutory power of sale

Holding

The ELC lacks jurisdiction where the predominant issue is the chargee's exercise of statutory power of sale and issuance of statutory notices; such disputes fall within the High Court's civil jurisdiction.

Reasoning

The court adopted the Court of Appeal's binding decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, which held that charging land does not constitute 'use of land' under Article 162(2)(b). A charge is merely a disposition securing repayment; the cause of action was the tabulation of sums owing and whether statutory notices issued, which are accounting/civil matters for the High Court. Since the Plaintiffs did not challenge the validity of the charge or allege fraud, the suit fell outside section 13 of the ELC Act.

p. 4
02

Transfer of a suit filed without jurisdiction

Holding

A suit filed in a court without jurisdiction is a nullity, dead on arrival, and cannot be transferred to a competent court even by consent of the parties.

Reasoning

Relying on the Supreme Court's decision in Albert Chaurembo Mumba, which invoked Kagenyi v Musiramo, the court held that an order transferring a suit cannot be made unless the suit was first brought to a court with jurisdiction. This was reinforced by the Court of Appeal in Phoenix of E.A. Assurance v S.M. Thiga and Equity Bank v Bruce Mutie Mutuku. The only remedies are withdrawal of the suit or striking out with costs.

p. 4

Legal principles established

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  • Where the predominant issue in a suit involves mortgages, charges, collection of dues and rents, and the issuance of statutory notices in respect of charges, it is the High Court, and not the Environment and Land Court, that has jurisdiction.
  • A suit filed before a court without jurisdiction is a nullity ab initio and cannot be transferred to another court; it can only be withdrawn or struck out with costs.

Court orders

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  1. 1.The Plaintiffs' suit is struck out with costs
  2. 2.The Plaintiffs to pay the costs of the Application dated 9th October 2020

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 162(3)
  • Constitution of Kenya, 2010Article 165(5)
  • Constitution of Kenya, 2010Articles 42, 69 and 70
  • Environment and Land Court ActSection 13
  • Environment and Land Court ActSection 2
  • Land ActSections 90(2)(b), 96(2), 97(2), 2 and 150
  • Civil Procedure ActSection 18

Cases cited (14)

  • Cooperative Bank of Kenya Limited vs. Patrick Kang'ethe and 5 others
    (2017) eKLR
  • Omondi & 210 others v Retirement Benefits Appeals Tribunal & 2 others
    [2020] eKLR
  • Owners of the Motor Vessel "Lillian S" vs. Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Samuel Kamau Macharia & Another vs. Kenya Commercial Bank Limited & 2 Others
    [2012] eKLR
  • Peter Gichuki King'ara v. Independent Electoral and Boundaries Commission & 2 others
    (2013) eKLR
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR
  • Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another
    [2016] eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR
  • Kagenyi v Musiramo & Another
    (1968) EALR 43
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    (2016) eKLR
  • Joseph Muthee Kamau & Another v. David Mwangi Gichure & Another
    (2013) eKLR
  • Thomas Mutuku Kasue v Housing Finance Company Ltd (HFC) & another
    [2021] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Stella Kavutha Muthoka & another v Kenya Women Microfinance Bank Ltd [2021] KEELC 2816 (KLR)", Case Analysis (2021). Not stated in judgment (suit filed 16th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2816/eng@2021-06-18

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