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ELCStruck OutEnvironment & Land Case E004 of 2022· [2022] KEELC 13672 (KLR)

Kibet (Suing against the legal representative of the Estate of Ruto Chepkurui (Deceased)) v National Bank of Kenya & another

Environment and Land Court
7 October 2022
4,114 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff sued the National Bank of Kenya and Jane Jelagat seeking a permanent injunction restraining further dealings with land known as LR No 322 Moiben Chebara, alleging that his deceased 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. Together with the plaint he filed a notice of motion for a temporary injunction. The 1st defendant raised a preliminary objection contending that the Environment and Land Court lacked jurisdiction because the substratum of the suit was a legal charge and the exercise of a statutory power of sale, matters unrelated to land use. The court, applying the Motor Vessel Lillian S principle and the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, held that charging land does not constitute land use under article 162(2)(b) of the Constitution, and that disputes whose predominant issue is a charge, mortgage or statutory power of sale fall within the High Court's civil jurisdiction. Relying further on the Supreme Court's decision in Albert Chaurembo Mumba and the Court of Appeal in Phoenix of E.A Assurance v M Thiga, the court held that a suit filed without jurisdiction is a nullity ab initio 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's decision in Co-operative Bank of Kenya Ltd v Patrick Kangethe Njuguna, the court held that charging land does not constitute land use under article 162(2)(b), and that contracts incidental to charges, mortgages, dues and rents fall within the High Court's jurisdiction. The predominant issue here was the validity of statutory notices issued by the chargee's auctioneer, so the suit fell outside section 13 of the ELC Act.

02

Fate of a suit filed without jurisdiction

Holding

A suit filed without jurisdiction is a nullity ab initio, cannot be transferred to a competent court, and jurisdiction cannot be conferred by consent

Reasoning

Following the Supreme Court in Albert Chaurembo Mumba and the Court of Appeal in Phoenix of E.A Assurance Co Ltd v M Thiga, the court held that a suit filed in a court lacking jurisdiction is dead on arrival and cannot be remedied by transfer under section 18 of the Civil Procedure Act; the only remedy is withdrawal and fresh filing in a court with jurisdiction.

Legal principles established

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  • Where the predominant issue in a suit involves mortgages, charges, collection of dues and rents, it is the High Court, not the Environment and Land Court, that has jurisdiction
  • 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), 162(3), 165(3), 165(5), 260
  • Environment and Land Court Actsection 2, section 13
  • Land Act, 2012section 2, section 97, section 150
  • Land Registration Act, 2012not specified
  • Land Administration Act, 2012not specified
  • Civil Procedure Actsection 18

Cases cited (12)

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

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

  • 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

    Similar holding on ELC jurisdiction over charges, adopted with approval

  • Joel Kipkosgei v Thomas Kiprop
    [2018] eKLR

    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

  • Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Ltd & another
    [2018] eKLR

    ELC has jurisdiction over disputes under the Land Act and Land Registration Act including charges

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

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

  • 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 Musiramo & another
    (1968) EALR 43

    Transfer 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 without jurisdiction is a nullity 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

  • Joseph Muthee Kamau & another v David Mwangi Gichure & another
    (2013) eKLR

    A suit filed in a court without jurisdiction is a nullity

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, "Kibet (Suing against the legal representative of the Estate of Ruto Chepkurui (Deceased)) v National Bank of Kenya & another", Case Analysis (2022). Environment & Land Case E004 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13672/eng@2022-10-07

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