Muteithia Kibira Advocates LLP v Co-operative Bank of Kenya Limited & another
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over disputes relating to charges
The question whether the Bank is entitled to replacement charges over the subdivision titles falls outside the ELC's jurisdiction
Although some ELC judges previously read Section 2 of the Land Act as conferring jurisdiction over charge and mortgage disputes, the Court of Appeal has held otherwise. The ELC is bound by those pronouncements, and it would not augur well for the administration of justice to exercise jurisdiction the Court of Appeal has ruled out.
Jurisdiction over enforcement of an advocate's professional undertaking
Breach of a professional undertaking is a matter for the High Court's civil jurisdiction, not the ELC
The second dominant issue is whether the law firm breached its professional undertaking to procure registration of replacement charges. The court held this is a civil dispute outside Article 162(2)(b) jurisdiction, which is confined to environment and land use, occupation and title disputes.
Plaintiff's argument that third-party ownership interests bring the dispute within ELC jurisdiction
Rejected because no third party is joined and the 2nd defendant's registered proprietorship is not contested
The plaintiff argued the dispute concerns ownership interests of third parties who purchased subdivided plots. The court found none of the alleged third parties is a party to the suit, and the 2nd defendant's registration as proprietor is unchallenged, so the argument fails.
Appropriate disposal where a court lacks jurisdiction
Transfer rather than striking out, following the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers
Before Kibos Distillers, the suit would have been struck out. The Supreme Court held that where appropriate, a superior court may transfer a suit filed in the wrong court. The court accordingly transferred the suit to the High Court at Kiambu.
Legal principles established
#- Disputes relating to charges and mortgages fall outside the jurisdiction of the Environment and Land Court, per binding Court of Appeal authority
- A superior court may transfer a suit filed in the wrong court rather than strike it out, per Benson Ambuti Adega v Kibos Distillers
Court orders
#- 1.The suit be transferred to the High Court of Kenya at Kiambu for disposal
- 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, "Muteithia Kibira Advocates LLP v Co-operative Bank of Kenya Limited & another", Case Analysis (2023). Environment & Land Case 78B of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16753/eng@2023-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.