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)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the constitutional jurisdiction of the court was properly invoked
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)
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.
Whether the Petitioner established a prima facie case warranting conservatory orders
No; the burden of establishing violation or threatened violation of Bill of Rights was not discharged
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.
Whether the distress for rent levied against the Petitioner by the 3rd Respondent was lawful
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated March 3, 2020 is dismissed
- 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.Each party shall bear its own costs of the two applications
- Jurisdiction invoked
- Articles 22(1) and 23(3) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.