Gakaria v National Housing Corporation & 2 others (Civil Suit E386 of 2022) [2023] KEELC 412 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over challenges to a chargee's statutory power of sale
The ELC lacks jurisdiction; such disputes are commercial matters for the High Court, per Cooperative Bank v Patrick Kang'ethe Njuguna and Diamond Trust Bank Kenya Ltd v Fatma Hassan Hadi
Following binding Court of Appeal authority, a charge is a disposition creating an interest in land for security, not a 'use' of land under Article 162. Contracts cognizable by the ELC must be incidental to land use and exclude mortgages, charges and collection of dues, which fall within the High Court's civil jurisdiction. Although the judge expressed personal reservations grounded in Section 150 of the Land Act, the doctrine of stare decisis compelled him to follow the Court of Appeal decisions.
Whether the applicant established a prima facie case for injunction
No - a prima facie case cannot be established before a forum without jurisdiction
Although the uncontroverted complaint of want of statutory notices under Sections 90 and 96 of the Land Act would ordinarily invalidate the exercise of the statutory power of sale, the applicant was agitating that complaint in a forum divested of jurisdiction. Applying Macfoy v United Africa Co Ltd, putting such a case before a court without jurisdiction is putting something on nothing; it collapses. The irreparable loss and balance of convenience limbs accordingly fell away.
Legal principles established
#- Jurisdiction is everything; proceedings by a court without jurisdiction are a nullity
- Challenges to the propriety, validity and legality of a chargee's exercise of statutory power of sale fall outside the jurisdiction of the Environment and Land Court and belong to the High Court
- Failure to issue and serve statutory notices under Sections 90 and 96 of the Land Act would invalidate exercise of the statutory power of sale
- Lower courts are bound by unreviewed decisions of superior courts under the doctrine of stare decisis
Court orders
#- 1.The Plaintiff's suit together with the Notice of Motion application dated 16th November 2022 be and are hereby struck out
- 2.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Environment and Land Court Act; Land Act, 2012 (Section 150)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gakaria v National Housing Corporation & 2 others (Civil Suit E386 of 2022) [2023] KEELC 412 (KLR)", Case Analysis (2023). Civil Suit No E386 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/412/eng@2023-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.