Urithi Housing Co-operative Society Ltd v Family Bank Limited & another (Environment and Land Case Civil Suit E042 of 2021) [2022] KEELC 2464 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land suit because the real dispute was about loan money, confirming such claims belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute whose substance is the amount due under a loan secured by a charge over land
The ELC lacks jurisdiction; the substance of the claim is accounting/monies owing, a matter for the High Court, notwithstanding the injunction sought over land.
The court applied the predominant purpose test from Suzanne Achieng Butler. The plaintiff did not challenge the charge instruments, only the amounts owing and the valuation. A charge creates limited rights over land, not land use. Relying on Co-operative Bank v Njuguna, accounting questions fall outside Section 13 of the ELC Act and Article 162(2), and lie within the High Court's unlimited original jurisdiction under Article 165(3).
Whether the suit is res judicata Murang'a ELC No. 25 of 2019
The res judicata ground failed as a preliminary objection because establishing it would require investigation of facts.
While some courts allow res judicata to be raised by preliminary objection where the facts are clear and certain (Accredo AG), here the plaintiff contested that the issues were conclusively determined in the former suit. Following George Kamau Kimani, such a contested ground requiring factual inquiry falls short of the pure point of law threshold in Mukisa Biscuit and must be raised by notice of motion with pleadings annexed.
Consequence of the suit being filed in a court without jurisdiction
The suit was incompetent and was struck out entirely rather than transferred.
Relying on Albert Chaurembo Mumba and Phoenix of E.A. Assurance v Thiga, the court held that a suit filed in an incompetent court is null ab initio and cannot be remedied; the only course is striking out. Having lost jurisdiction, the court also declined to determine the pending application dated 31st January 2022.
Legal principles established
#- The ELC's jurisdiction is limited by the predominant purpose test: where a transaction involves land and other goods or services, jurisdiction lies in the ELC only if the transaction is predominantly for land.
- The ELC has no jurisdiction to determine accounting questions arising from a loan secured by a charge over land; such disputes fall to the High Court under Article 165(3).
- A charge over land does not constitute land use; it merely creates rights over land that crystallize upon default, so a dispute over amounts due under a loan is not within ELC jurisdiction.
- Res judicata cannot be determined through a preliminary objection where facts must be investigated; it is best raised by notice of motion with pleadings annexed.
- A suit filed in a court without jurisdiction is dead on arrival and must be struck out; it cannot be cured by transfer or otherwise.
Court orders
#- 1.The 1st Defendant's Notice of Preliminary Objection dated 20th January 2022 partially succeeds on the ground of lack of jurisdiction
- 2.The Plaintiff's suit is struck out entirely for lack of jurisdiction
- 3.Costs of the suit to the 1st Defendant/Objector
- 4.No determination made on the Plaintiff's Notice of Motion dated 31st January 2022, having struck out the suit for lack of jurisdiction
- 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, "Urithi Housing Co-operative Society Ltd v Family Bank Limited & another (Environment and Land Case Civil Suit E042 of 2021) [2022] KEELC 2464 (KLR)", Case Analysis (2022). ELC Case (Murang'a) - Notice of Preliminary Objection dated 20th January 2022 in the suit; application dated 31st January 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2464/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.