Kibet (Suing against the legal representative of the Estate of Ruto Chepkurui (Deceased)) v National Bank of Kenya & another
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over disputes on legal charges and statutory power of sale
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
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.
Fate of a suit filed without jurisdiction
A suit filed without jurisdiction is a nullity ab initio, cannot be transferred to a competent court, and jurisdiction cannot be conferred by consent
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
#- 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
#- 1.The suit is struck out
- 2.Costs to the defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.