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ELCOtherEnvironment & Land Case 78B of 2022· [2023] KEELC 16753 (KLR)

Muteithia Kibira Advocates LLP v Co-operative Bank of Kenya Limited & another

Environment and Land Court
27 March 2023
1,566 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 law firm was engaged by Co-operative Bank of Kenya to process a discharge of charge over LR Number 11486/10, procure subdivision of the title registered in the name of New Age Developers and Construction Company Limited (the Bank's chargor), and procure replacement charges over the subdivision titles to secure the subsisting loan. The Bank insisted the firm honour its undertaking to hold the mother title, subdivide it and procure replacement charges; the firm contended that intervening events, including sales of some subdivided plots, released it from the undertaking, and sought among other relief a permanent injunction restraining the Bank from lodging complaints against it with disciplinary bodies. While preparing a ruling on two pending applications, the court identified the two dominant issues - the Bank's entitlement to replacement charges and the firm's alleged breach of its professional undertaking - and invited submissions on jurisdiction. Holding that disputes relating to charges fall outside the ELC's jurisdiction under Article 162(2)(b) per binding Court of Appeal authority, and that enforcement of a professional undertaking belongs to the High Court's civil jurisdiction, the court found it lacked jurisdiction over both dominant issues. Relying on the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers, it declined to strike out the suit and instead ordered its transfer to the High Court of Kenya at Kiambu for disposal. No costs order was made.

Key legal issues

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01

Jurisdiction over disputes relating to charges

Holding

The question whether the Bank is entitled to replacement charges over the subdivision titles falls outside the ELC's jurisdiction

Reasoning

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.

02

Jurisdiction over enforcement of an advocate's professional undertaking

Holding

Breach of a professional undertaking is a matter for the High Court's civil jurisdiction, not the ELC

Reasoning

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.

p. 3
03

Plaintiff's argument that third-party ownership interests bring the dispute within ELC jurisdiction

Holding

Rejected because no third party is joined and the 2nd defendant's registered proprietorship is not contested

Reasoning

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.

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04

Appropriate disposal where a court lacks jurisdiction

Holding

Transfer rather than striking out, following the Supreme Court's decision in Benson Ambuti Adega v Kibos Distillers

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The suit be transferred to the High Court of Kenya at Kiambu for disposal

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b)
  • Environment and Land Court ActSection 13
  • Land ActSection 2 (definition of 'court')

Cases cited (3)

  • Diamond Trust Bank Kenya Limited v FHH
    Civil Appeal 18 of 2020 [2022] keca 769 (KLR)

    Disputes relating to charges and mortgages fall outside ELC jurisdiction

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

    Disputes relating to charges and mortgages fall outside ELC jurisdiction

  • Benson Ambuti Adega & 2 others v Kibos Distillers Limited & 5 others
    [2020] eKLR

    A superior court may transfer a suit filed in the wrong court instead of striking it out

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, "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.