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ELCOtherELC Case (Murang'a) - Notice of Preliminary Objection dated 20th January 2022 in the suit; application dated 31st January 2022· [2022] KEELC 2464 (KLR)

Urithi Housing Co-operative Society Ltd v Family Bank Limited & another (Environment and Land Case Civil Suit E042 of 2021) [2022] KEELC 2464 (KLR)

Environment and Land Court
14 July 2022
4,274 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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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

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Executive summary

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The Plaintiff, Peter Mwenda Njagi, moved the Environment and Land Court at Murang'a by Notice of Motion dated 31st January 2022 seeking review and setting aside of an order of 26th January 2022 dismissing, for non-attendance, his earlier application dated 17th December 2021 (which sought injunction-related reliefs over land charged to secure a Kshs. 500,000,000 loan). The 1st Defendant opposed and filed a Notice of Preliminary Objection dated 20th January 2022 contending that the court lacked jurisdiction because the dispute was commercial, and that the suit was res judicata Murang'a ELC No. 25 of 2019 (Anthony Mbugua Njihia & 36 Others v Urithii Housing Co-operative Society Limited). The court first set out the Mukisa Biscuit threshold for preliminary objections. On jurisdiction, applying the predominant purpose test (Suzanne Achieng Butler) and the Court of Appeal's decision in Co-operative Bank v Kangethe Njuguna, it held that although the relief sought was an injunction over land, the substance of the claim concerned disputed loan amounts and accounting - a matter for the High Court - a charge over land not constituting land use. It therefore found it lacked jurisdiction. On res judicata, it held the ground failed as a preliminary objection because it required investigation of facts, following George Kamau Kimani. The preliminary objection partially succeeded on jurisdiction; the entire suit was struck out with costs to the 1st Defendant, and the pending application dated 31st January 2022 was not determined. Judgment delivered virtually at Murang'a on 14th July 2022 by L. Gacheru J.

Key legal issues

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01

Whether the ELC has jurisdiction over a dispute whose substance is the amount due under a loan secured by a charge over land

Holding

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.

Reasoning

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).

p. 7
02

Whether the suit is res judicata Murang'a ELC No. 25 of 2019

Holding

The res judicata ground failed as a preliminary objection because establishing it would require investigation of facts.

Reasoning

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.

p. 8
03

Consequence of the suit being filed in a court without jurisdiction

Holding

The suit was incompetent and was struck out entirely rather than transferred.

Reasoning

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

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  • 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

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 20th January 2022 partially succeeds on the ground of lack of jurisdiction
  2. 2.The Plaintiff's suit is struck out entirely for lack of jurisdiction
  3. 3.Costs of the suit to the 1st Defendant/Objector
  4. 4.No determination made on the Plaintiff's Notice of Motion dated 31st January 2022, having struck out the suit for lack of jurisdiction

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3)
  • Constitution of KenyaArticle 165(5)
  • Environment and Land Court ActSection 13
  • Land ActSections 96, 150, 101
  • Land Registration Act
  • Registration of Titles Act

Cases cited (20)

  • Cooperative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 Others
    [2017] eKLR
  • Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others
    {2019} eKLR
  • Kangenyi v Musiramo & Another
    [1968] EALR 43
  • Anthony Mbugua Njihia & 36 others v Urithi Housing Co-operative Society Ltd & another
    [2021] eKLR (Murang'a ELC No. 25 of 2019)
  • Mukisa Biscuit Manufacturing and Co. Ltd v West End Distributors
    [1969] EA 696
  • Nitin Properties Ltd v Singh Kalsi & Another
    [1995] eKLR
  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR, Nairobi CA Civil Appeal No. 105 of 2017
  • John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport and Infrastructure & 3 Others
    {2021} eKLR
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR, Civil Application No. 36 of 2014
  • Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service
    [2019] eKLR
  • Owners of the Motor Vessel Lillian S v Caltex Oil (Kenya) Ltd.
    [1989]
  • Samuel Kamau Macharia v Kenya Commercial Bank & 2 Others
    Civil Appl. No. 2 of 2011
  • Republic v Karisa Chengo & 2 others
    [2017] eKLR, Petition No. 5 of 2015
  • Mathew Namusei Chahasi v Cooperative Bank Limited & another
    [2021] eKLR
  • Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another
    [2018] eKLR
  • Stephen Kibowen v Agricultural Finance Corporation
    (2015) eKLR
  • Orange Democratic Movement v Yusuf Ali Mohamed & 5 others
    [2018] eKLR
  • Suzanne Achieng Butler & 4 others v Redhill Heights Investments Limited & another
    [2016] eKLR
  • Accredo AG & 3 others v Steffano Uccelli & another
    [2019] eKLR
  • George Kamau Kimani & 4 Others v County Government of Trans-Nzoia & Another
    [2014] 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, "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.