GDM v Consolidated Bank of Kenya & another
The bottom line
#A Kenyan land court paused a bank charge dispute for one year until a High Court decides whether the property is matrimonial property.
What this practically means
#Executive summary
#Key legal issues
#Sub-judice and stay of proceedings under Section 6 of the Civil Procedure Act
The suit is stayed for one year pending determination in the High Court matrimonial property cause of whether the suit properties are matrimonial properties.
The plaintiff and the 2nd defendant are litigating the same suit properties before two courts. The High Court, under Article 165(3)(a), the Marriage Act 2014 and the Matrimonial Property Act 2013, has mandate over matrimonial property claims, including the presumption that the properties are matrimonial property. This court cannot divide matrimonial property under Section 6 of the Matrimonial Property Act. The spousal-consent question under Section 92(3) of the Land Registration Act depends on that prior determination, so a stay is proper.
Jurisdiction of the Environment and Land Court over the spousal consent claim
The ELC has jurisdiction over the claim based on Section 92(3) of the Land Registration Act, but not to divide matrimonial property on dissolution of marriage.
The court's jurisdiction is created by Article 162(2) of the Constitution and Section 13(2) of the Environment and Land Court Act. User and occupation of land fall under the ELC; the legality of the charge and spousal consent go to title. However, the presumption that the properties form part of the matrimonial property falls under the High Court by dint of sections 2, 7 and 14 of the Matrimonial Property Act and Section 14 of the Marriage Act.
Pleadings and the unpleaded sub-judice issue
Although neither defence pleaded sub-judice or stay, the court entertained the issue on the material supplied, noting parties are bound by their pleadings.
The 1st defendant's defence dated 4.2.2022 pleaded it was not privy to the suit between the plaintiff and the 2nd defendant, and the sub-judice issue was not pleaded; the 2nd defendant's defence raised neither res judicata nor stay. The jurisdiction issue had already been ruled on on 26.1.2022. Nonetheless, the court considered the originating summons dated 1.2.2019 showing overlapping properties and proceeded to stay the suit.
Legal principles established
#- Stay of proceedings is a grave matter because it borders on a party's right to expeditious disposal of the case.
- Where the substratum of the dispute is ownership of land, the Environment and Land Court has jurisdiction, but the question whether property is matrimonial property falls to the High Court.
Court orders
#- 1.The suit is stayed for one year
- 2.The subsisting interim orders and directions shall continue as ordered
- 3.Parties are at liberty to apply for review if need be
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13(2) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "GDM v Consolidated Bank of Kenya & another", Case Analysis (2023). Environment & Land Case E001 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21952/eng@2023-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.