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ELCPartially AllowedNot stated in the excerpt provided· [2022] KEELC 2055 (KLR)
Martin Luther Mc Were v James Mabango Ambundo [2022] KEELC 2055 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By a plaint dated 16th April 2021, the Plaintiff sued the Defendant seeking an account of all monies received by the Defendant under a power of attorney in the management of two properties - house B2 in Kileleshwa on L.R No. NRB/Block 209/2973 and house No. 8 in Lavington on L.R No. 3734/929 - surrender of title documents, remittance of unremitted rent of Ksh 17,120,000, release of Ksh 7,900,000 in sale proceeds, refund of Ksh 3,000,000, and substantial special damages. The Defendant filed a preliminary objection dated 12th October 2021 contending that the ELC lacked jurisdiction because the claim was essentially a commercial dispute arising from a principal-agent relationship, relying chiefly on Cooperative Bank of Kenya v Patrick Kangethe Njuguna. The Plaintiff maintained the suit was properly before the ELC under Article 162(2)(b) and Section 13 of the ELC Act, and in the alternative sought transfer to the High Court. Applying the Mukisa Biscuit test for preliminary objections and the predominant purpose test, and invoking Owners of the Motor Vessel 'Lilian S', the Court (E. K. Wabwoto, J) held that the suit's predominant purpose was recovery of monies and accounting, not ownership of land, and that such accounting questions fall within the High Court's jurisdiction under Article 165(3). The Court allowed the preliminary objection and transferred the proceedings to the High Court (Commercial and Tax Division), with costs of the objection in the cause.
Key legal issues
#01
Whether the ELC has jurisdiction over a suit seeking accounting and recovery of monies received by the Defendant under a power of attorney in respect of two properties
Holding
The ELC lacks jurisdiction; the dispute is predominantly commercial, for the High Court
Reasoning
Applying the predominant purpose test, the Court examined the pleadings and found the suit concerned monies due and owing for management/acquisition of two properties, not title, use or occupation of land. Relying on the Court of Appeal in Cooperative Bank v Kangethe Njuguna, accounting questions fall under Article 165(3) within the High Court's original and unlimited civil jurisdiction, outside Section 13 of the ELC Act. The Court therefore transferred the proceedings.
p. 3
Legal principles established
#- A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
- Jurisdiction is foundational; a court without jurisdiction must down its tools
- The ELC's jurisdiction over rents does not extend to accounting questions between principal and agent under a power of attorney; such claims fall to the High Court under Article 165(3)
Court orders
#- 1.These proceedings be heard and determined by the High Court (Commercial and Tax Division)
- 2.The Deputy Registrar of this Court is directed to facilitate the transfer
- 3.Costs of the Preliminary Objection to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution read with Section 13 of the Environment and Land Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Luther Mc Were v James Mabango Ambundo [2022] KEELC 2055 (KLR)", Case Analysis (2022). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2055/eng@2022-01-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.