Julius Kipkeny Kolil & another v Kenya Commercial Bank & 3 others [2022] KEELC 1186 (KLR)
The bottom line
#A Kenyan land owner challenging a bank's property sale must sue in the High Court, not the Environment and Land Court, and cannot refile an already-decided case.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute arising from the exercise of statutory power of sale
No; the dispute is commercial in nature and falls within the High Court's jurisdiction under Article 165(3)
The court examined the pleadings and found the suit concerned whether statutory notice for sale was issued and the tabulation of amounts paid. Relying on the Court of Appeal's decision in Cooperative Bank of Kenya v Njuguna, it held that ELC jurisdiction over disputes connected to use of land excludes mortgages, charges, collection of dues and rents, which lie within the High Court's civil jurisdiction. A court lacking jurisdiction must lay down its tools.
Whether the suit is res judicata in view of Nairobi HCCC No. 407 of 2012
Yes; the Applicants are barred from filing a similar suit over the same parties and issues
The court set out the five conjunctive elements of res judicata under Section 7. It found that the former suit, Nairobi HCC 407 of 2012 between the same parties over the same issues, had been dismissed by the High Court (for want of prosecution, per the Respondents' submissions), and that the Applicants were therefore barred from re-litigating the same issues in any court.
The proper materials for a preliminary objection
A preliminary objection is decided on law and pleadings only; the Applicants' replying affidavit is inadmissible and was ignored
Relying on Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd, the court restated that a preliminary objection is argued on the basis of law and pleadings before court, and that no supporting affidavit or replying affidavit is admissible. The Applicants ought to have filed only written submissions in response.
Legal principles established
#- The ELC's jurisdiction under Article 162(2)(b) does not extend to disputes over mortgages, charges, collection of dues and rents, which fall within the High Court's civil jurisdiction under Article 165(3)
- A court without jurisdiction must down its tools
- Res judicata's five essential elements under Section 7 are stipulated in conjunctive terms
- A preliminary objection is determined on law and pleadings alone; no affidavits are admissible
Court orders
#- 1.The preliminary objections of the 1st and 2nd Respondents are upheld
- 2.The Applicants' suit is dismissed
- 3.Each party to bear their own 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
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbugua & another v Mbuthia & 9 others (Environment & Land Case 518 of 2016) [2020] KEELC 3986 (KLR)[2020] KEELC 3986 (KLR)19 Nov 2020
- Dolly Nyambura Mwangi v Faulu Micro Finance Bank Limited [2020] KEELRC 253 (KLR)[2020] KEELRC 253 (KLR)6 Nov 2020applied
Cite this brief
#Cite this brief
Caselaw, "Julius Kipkeny Kolil & another v Kenya Commercial Bank & 3 others [2022] KEELC 1186 (KLR)", Case Analysis (2022). ELC Originating Summons dated 18th June 2021 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1186/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.