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ELCDismissed· [2022] KEELC 2275 (KLR)

Muvokanza Limited v Muri Mwaniki Thige & Kageni Llp & another (Environment & Land Case 120 of 2021) [2022] KEELC 2275 (KLR)

Environment and Land Court
16 May 2022
MOMogeni
2,738 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a title release suit, ruling that disputes over charges and title documents belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The 1st and 2nd defendants filed a preliminary objection dated 5/10/2021 seeking to strike out the plaintiff's plaint dated 7/04/2021, arguing that the Environment and Land Court lacked jurisdiction because the suit concerned the creation of a legal charge, an advocate's lien and unpaid charge costs - an ordinary civil dispute for the High Court. The plaintiff sought an order compelling the defendants to release the original instrument of title over LR No. 209/5862, deposited as security when the plaintiff explored a Kshs. 150,000,000 finance facility from the 2nd defendant that was never taken up, as the plaintiff wished to sell the property to a third party. Framing two issues - whether the objection raised pure points of law and whether the court had jurisdiction - the court applied Mukisa Biscuit, Nitin Properties, Oraro v Mbaja and the Supreme Court's Joho decision to find the objection was a pure point of law. Relying on the Court of Appeal's decision in Cooperative Bank v Kangethe Njuguna, the court held that a charge does not constitute use of land and that contractual disputes concerning charges fall within the High Court's civil jurisdiction, not Section 13(2) of the ELC Act. The court found the plaint, as prayers stood, to be more a civil than a land dispute, held it lacked jurisdiction, and dismissed the suit with costs to the defendants on 16 May 2022 (Mogeni J).

Key legal issues

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01

Whether the preliminary objection raises pure points of law

Holding

It does; a challenge to jurisdiction is a pure point of law that can determine the suit without considering the merits.

Reasoning

Relying on Mukisa Biscuit, Nitin Properties, Oraro v Mbaja and the Joho decision, the court held that a jurisdictional challenge assumes the facts pleaded are true and disposes of the suit without ascertaining facts or exercising discretion. Since the suit had not been heard, the defendants were properly within the law to raise the objection.

p. 3
02

Whether the ELC has jurisdiction over a claim for release of the original instrument of title held under a charge

Holding

It does not; the dispute concerns a charge and contractual obligations, which is a civil dispute for the High Court, not a dispute relating to the use and occupation of, or title to, land.

Reasoning

Following Cooperative Bank v Kangethe Njuguna, the court accepted that charging land does not connote land use, and that contracts under Section 13 of the ELC Act must be incidental to use of land, excluding mortgages and charges. As the prayers stood, the suit was a civil dispute rather than a land dispute.

p. 5

Legal principles established

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  • A charge or mortgage does not constitute use of land and does not fall within the jurisdiction of the Environment and Land Court under Article 162 of the Constitution and Section 13(2) of the ELC Act; such disputes fall within the civil jurisdiction of the High Court.
  • Without jurisdiction a court has no power to take any step and must down its tools.

Court orders

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  1. 1.The suit is dismissed with costs awarded to the Defendants.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b), Article 162(3), Article 260
  • Environment and Land Court Act, 2011Section 13(1), 13(2)(a), 13(2)(b), 13(2)(c), 13(2)(d), 13(2)(e), Section 2
  • Land Act No. 6 of 2012Section 150, Section 2, Section 80
  • Land Registration Act, 2012Not specified

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
  • Nitin Properties Ltd v Singh Kalsi & another
    [1995] eKLR
  • Oraro v Mbaja
    [2007] KLR 141
  • Hassan Ali Joho & another v Suleiman Said Shabal & 2 others
    SCK Petition No. 10 of 2013 [2014] eKLR
  • In the Matter of Interim Independent Electoral Commission
    [2011] eKLR
  • Owners of Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Limited
    [1989] KLR 1
  • Cannon Assurance Kenya Ltd v Fredrick Gathithi Kabue
    [2013] eKLR
  • Cooperative Bank v Patrick Kangethe Njuna & 5 others
    [2017] eKLR
  • Cooperative Bank of Kenya Limited v Kangethe Njuguna
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act, 2011

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, "Muvokanza Limited v Muri Mwaniki Thige & Kageni Llp & another (Environment & Land Case 120 of 2021) [2022] KEELC 2275 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2275/eng@2022-05-16

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