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ELCOtherEnvironment & Land Case E090 of 2022· [2023] KEELC 16769 (KLR)

Wakabu v Kiambu Unity Savings And Credit Co-operative Society Limited & another

Environment and Land Court
15 March 2023
BEB M Eboso
578 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court signalled it may lack jurisdiction over disputes purely about charges, directing parties to argue the point before any injunction ruling.

What this practically means

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Executive summary

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This is an interlocutory order issued by the Environment and Land Court at Thika in a suit filed by Edward Waweru Wakabu against Kiambu Unity Savings and Credit Co-operative Society Limited and the Land Registrar-Kiambu. The plaintiff sued by plaint dated July 29, 2022 and moved by notice of motion dated August 1, 2022 seeking an interlocutory injunction restraining the 1st defendant from auctioning land parcel Kabete/Nyathuna/2006 in exercise of the chargee's statutory power of sale. The 1st defendant had a pending application dated September 16, 2022 seeking to strike out the suit; both motions had been reserved for ruling. Before writing the ruling, the court noted that the dispute revolves around a legal charge over the suit property, on which a discharge entry had been declared fraudulently procured. Relying on the Court of Appeal's decision in Diamond Trust Bank Kenya Limited v FHH, which held that suits to restrain a chargee's statutory power of sale are commercial matters for the High Court, the judge expressed doubt as to whether the ELC is the proper forum. Rather than rule on the applications, the court vacated the reserved ruling date and directed the parties to attend court and address it on the question of jurisdiction. No substantive relief was granted or refused and no costs order was made.

Key legal issues

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01

Jurisdiction of the ELC over charge disputes

Holding

The court expressed doubt whether it has jurisdiction over a dispute which entirely relates to a charge, following Court of Appeal authority, and directed parties to address it on jurisdiction before the reserved applications are decided.

Reasoning

The court observed that the dispute revolves around a legal charge created over the suit property, and that a discharge of charge entry had been declared fraudulently procured. Citing the Court of Appeal in Diamond Trust Bank Kenya Limited v FHH, which held that restraining a chargee's statutory power of sale is a commercial matter for the High Court, the judge found doubt as to the ELC's proper forum and deferred all pending applications pending a jurisdiction hearing.

p. 2

Legal principles established

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  • A suit whose object is to restrain a chargee from exercising its statutory power of sale is a commercial matter for the High Court, not the ELC

Court orders

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  1. 1.The order reserving a ruling date on the two applications in this suit is vacated
  2. 2.Parties are ordered to attend court and address the court on the question of jurisdiction

Authorities

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Cases cited (2)

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

    Restraining a chargee's statutory power of sale is a commercial matter for the High Court, not the ELC

  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others

    Referenced within the quoted passage as authority that such disputes are commercial matters for the High Court

Jurisdiction invoked
Environment and Land Court Act jurisdiction over disputes relating to charges; court raised doubt on its own jurisdiction

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, "Wakabu v Kiambu Unity Savings And Credit Co-operative Society Limited & another", Case Analysis (2023). Environment & Land Case E090 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16769/eng@2023-03-15

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