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ELCPartially AllowedPetition dated March 3, 2020 (Nairobi)· [2022] KEELC 3271 (KLR)

PKA (Suing on her behalf and as next friend of her Minor Children) v NCBA Bank Kenya PLC & 3 others (Environment & Land Petition 17 of 2020) [2022] KEELC 3271 (KLR)

Environment and Land Court
28 July 2022
4,267 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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What this practically means

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Executive summary

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The court dealt with two applications by the Petitioner in a constitutional petition concerning the sale by public auction of the suit property, L R No Kiambaa/Kihara/2861, which she and the 2nd Respondent had charged to the 1st Respondent to secure a loan. In the Notice of Motion dated March 3, 2020 the Petitioner sought conservatory orders staying the sale, transfer and dealings with the suit property, alleging violations of Articles 27, 40 and 53 of the Constitution. The 1st and 4th Respondents opposed, contending the issues were res judicata and pending in ELC Suit No 4 of 2018. Applying the constitutional avoidance principle, the court held that the complaints disclosed a commercial dispute between a bank and a customer, not a constitutional issue, and that no prima facie violation had been established with the precision required by Anarita Karimi Njeru. Further, the sale had been completed and transferred to the 3rd Respondent, so no stay could issue. That application was dismissed. In the Notice of Motion dated March 14, 2022 the Petitioner sought an injunction against distress for rent levied by the 3rd Respondent. The court held that distress for rent lies only against a tenant; the Petitioner and 2nd Respondent, though occupying the property, were not tenants of the 3rd Respondent, making the distress of Kshs 4,800,000 illegal. An injunction restraining the 3rd Respondent from levying or continuing the distress was granted pending hearing of the petition. Each party was ordered to bear its own costs of the two applications.

Key legal issues

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01

Whether the constitutional jurisdiction of the court was properly invoked

Holding

It was not; the complaints raise contractual/commercial issues between a bank and a customer that are the subject of a pending civil suit (ELC No. 4 of 2018)

Reasoning

The court applied the constitutional avoidance principle: where a matter can be decided on another basis, the Constitution should not be invoked. Failure by a bank to provide loan statements or an allegedly irregular sale of charged property raises contractual and statutory issues, not constitutional ones. The same issues between the same parties were already pending in ELC No. 4 of 2018, making the petition an improper parallel constitutional proceeding.

p. 7
02

Whether the Petitioner established a prima facie case warranting conservatory orders

Holding

No; the burden of establishing violation or threatened violation of Bill of Rights was not discharged

Reasoning

It is not enough to assert that rights have been violated; the petitioner must show that the alleged acts are actually contrary to the cited constitutional provisions. The alleged violations were at most breaches of contractual arrangements governed by statute, which is the subject of the pending suit. Additionally, the sale was already completed, and a court cannot stay or restrain an act that has already taken place.

p. 7
03

Whether the distress for rent levied against the Petitioner by the 3rd Respondent was lawful

Holding

It was illegal; distress for rent can only be levied against a tenant, and the Petitioner and 2nd Respondent, having refused to vacate the suit property, are not tenants of the 3rd Respondent

Reasoning

The court found as common ground that the property had been sold and transferred to the 3rd Respondent, who was now the registered owner, but that the Petitioner and the 2nd Respondent remained in occupation. Because no landlord and tenant relationship existed between them and the 3rd Respondent, the distress for rent of Kshs 4,800,000 levied through auctioneers under the Distress for Rent Act was unlawful, entitling the Petitioner to an injunction pending the hearing of the petition.

p. 8

Legal principles established

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  • A court will not determine a dispute brought as a constitutional issue where the same can be determined through other processes provided for in law (constitutional avoidance)
  • A party seeking a conservatory order must demonstrate a prima facie case with likelihood of success and real danger of prejudice
  • A party alleging constitutional violation must set out with reasonable precision the complaint, the provisions infringed and the manner of infringement
  • Distress for rent can only be levied against a tenant; a former owner in occupation is not a tenant

Court orders

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  1. 1.The Notice of Motion dated March 3, 2020 is dismissed
  2. 2.An injunction is granted restraining the 3rd Respondent from levying or continuing with the distress for rent commenced against the Petitioner pending the hearing of the petition
  3. 3.Each party shall bear its own costs of the two applications

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 23(3)
  • Constitution of Kenya, 2010Articles 27, 40, 43, 53
  • Distress for Rent ActCap 293 Laws of Kenya

Cases cited (8)

  • Centre For Rights Education and Awareness (CREAW) & 7 Others v Attorney General
    Nairobi High Court Petition No 16 of 2011
  • Kevin K Mwiti & others v Kenya School of Law & others
    [2015] eKLR
  • Uhuru Muigai Kenyatta v Nairobi Star Publications Ltd.
    [2013] eKLR
  • Anarita Karimi Njeru v Republic
    [1980] eKLR
  • AG vs S K Dutambala Cr Appeal No 37 of 1991
  • Leonida Aloo Odhiambo v Attorney General & another
    [2020] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Ashwander v Tennessee Valley Authority
    297 U.S. 288, 347 (1936)
Jurisdiction invoked
Articles 22(1) and 23(3) of the Constitution of Kenya, 2010

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, "PKA (Suing on her behalf and as next friend of her Minor Children) v NCBA Bank Kenya PLC & 3 others (Environment & Land Petition 17 of 2020) [2022] KEELC 3271 (KLR)", Case Analysis (2022). Petition dated March 3, 2020 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3271/eng@2022-07-28

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