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ELCStruck OutEnvironment & Land Case E005 of 2022· [2022] KEELC 13669 (KLR)

Cherono (Suing as the legal representative of the Estate of Cherono Cherop Chepngal (Deceased)) v National Bank of Kenya Limited & another

Environment and Land Court of Kenya
7 October 2022
LWL N Waithaka
3,773 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a landowner's suit against a bank because mortgage and auction disputes belong in the High Court, not the ELC.

What this practically means

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Executive summary

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The plaintiff, as legal representative of his deceased father's estate, sued the National Bank of Kenya and Jane Jelagat seeking a permanent injunction restraining the bank from auctioning Land LR No 329 Moiben Chebara, contending that his father never took a loan from the bank and that the auctioneer's 45 days' notice was invalid for non-compliance with Section 97 of the Land Act, 2012. Together with the plaint he filed a notice of motion for a temporary injunction. The 1st defendant raised a preliminary objection dated June 29, 2022, contending that the Environment and Land Court lacks jurisdiction because the substratum of the suit is a legal charge and the exercise of a statutory power of sale, unrelated to land use. The objection was disposed of by written submissions; the plaintiff's submissions were expunged for non-payment of fees. Applying the Court of Appeal's decision in Co-operative Bank of Kenya v Patrick Kangethe Njuguna, the court held that charging land does not constitute 'land use' under Article 162(2)(b) of the Constitution and Section 13 of the ELC Act, and that disputes whose predominant issue is mortgages, charges, collection of dues and rents fall within the High Court's civil jurisdiction. Relying further on Supreme Court and Court of Appeal authority (Albert Chaurembo Mumba, Phoenix of E.A. Assurance, Equity Bank v Mutie), the court held that a suit filed without jurisdiction is a nullity and cannot be transferred to a competent court. The suit was struck out with costs to the defendants.

Key legal issues

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01

Jurisdiction of the ELC over disputes on legal charges and statutory power of sale

Holding

The ELC lacks jurisdiction where the predominant issue is a legal charge and the exercise of statutory power of sale; such disputes fall within the High Court's civil jurisdiction

Reasoning

Relying on the Court of Appeal in Co-operative Bank v Njuguna, the court reasoned that charging land is not 'land use' within Article 162(2)(b); a charge creates a security relationship limited to realization of the security, and contracts must be incidental to land use to attract ELC jurisdiction. Mortgages, charges, collection of dues and rents fall within the High Court's jurisdiction.

p. 4
02

Fate of a suit filed without jurisdiction

Holding

A suit filed without jurisdiction is a nullity, dead on arrival, and cannot be transferred to a court with jurisdiction

Reasoning

Following Supreme Court authority in Albert Chaurembo Mumba and Court of Appeal decisions in Phoenix of E.A. Assurance and Equity Bank v Mutie, the court held that jurisdiction must exist at filing; parties cannot confer it by consent, and transfer would sanctify an incompetent suit.

Legal principles established

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  • Where the predominant issue in a suit involves mortgages, charges, collection of dues and rents, jurisdiction lies with the High Court and not the Environment and Land Court
  • A suit filed in a court without jurisdiction is a nullity and cannot be transferred to a competent court

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs to the defendants

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Constitution of KenyaArticle 165(3), 165(5)
  • Constitution of KenyaArticles 42, 69, 70
  • Environment and Land Court ActSection 13, Section 2
  • Land Act, 2012Section 97, Section 2, Section 150
  • Land Administration Act, 2012not specified
  • Civil Procedure ActSection 18

Cases cited (11)

  • Motor Vessel M.V Lillian S v Caltex Oil (K) Limited
    [1989] KLR

    Jurisdiction is everything; a court without jurisdiction must down its tools

  • Republic v Karisa Chengo & 2 others
    [2017] eKLR

    Definition of jurisdiction; ELC and ELRC are sui generis courts distinct from the High Court

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR

    Charging land is not land use; mortgage/charge disputes fall within High Court jurisdiction

  • Thomas Mutuku Kasua v Housing Finance Company Ltd (HFC) & another
    [2021] eKLR

    Application of Njuguna; a suit filed without jurisdiction cannot be transferred

  • Joel Kipkosgei v Thomas Kiprop
    [2018] eKLR

    A suit filed without jurisdiction ought to be struck out, not transferred

  • Rob De Jong & Another v Charles Mureithi Wachira
    [2012] eKLR

    Relied on in Joel Kipkosgei on striking out suits filed without jurisdiction

  • Albert Chaurembo Mumba & 7 others v Maurice Munyao & 148 others
    [2019] eKLR

    A suit filed before a court without jurisdiction cannot be transferred to another court

  • Kagenyi v Musirambo
    (1968) EA 43

    Transfer order cannot be made unless the suit was first brought to a court with jurisdiction

  • Phoenix of E.A. Assurance Company Limited v M. Thiga t/a Newspaper Service
    [2019] eKLR

    A suit filed devoid of jurisdiction is dead on arrival and cannot be remedied by transfer

  • Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel
    [2016] eKLR

    It is illegal to transfer a suit filed in a court lacking jurisdiction; parties cannot confer jurisdiction by consent

  • Joseph Muthee Kamau & Another v David Mwangi Gichure & Another
    [2013] eKLR

    A suit filed in a court without jurisdiction is a nullity; jurisdiction cannot be conferred at judgment

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (raised on a preliminary objection to jurisdiction)

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, "Cherono (Suing as the legal representative of the Estate of Cherono Cherop Chepngal (Deceased)) v National Bank of Kenya Limited & another", Case Analysis (2022). Environment & Land Case E005 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13669/eng@2022-10-07

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