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ELCOtherEnvironment & Land Case E001 of 2022· [2023] KEELC 21952 (KLR)

GDM v Consolidated Bank of Kenya & another

Environment and Land Court at Meru
29 November 2023
1,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by CK Nzili J of the Environment and Land Court at Meru arose at the main hearing on 28 September 2023 when the 1st defendant, Consolidated Bank of Kenya, raised the existence of a pending High Court matrimonial property cause (No. 14 of 2019) between the plaintiff GDM and the 2nd defendant CMM, and urged that this suit be stayed to avoid conflicting decisions and forum shopping. The plaintiff opposed, arguing the issues were distinct and that the legality of the charge fell within the ELC's jurisdiction under Section 92(3) of the Land Registration Act. The court directed written submissions. The court held that the plaintiff and the 2nd defendant were litigating the same properties before two courts; that the High Court has mandate over matrimonial property claims under Article 165(3)(a), the Marriage Act 2014 and the Matrimonial Property Act 2013; and that the ELC, though seized of the spousal-consent and charge-legality claim, could not determine whether the properties were matrimonial property. Noting that stay of proceedings is a grave matter, the court found this a proper suit to stay until the matrimonial property question is determined, after which it could decide whether spousal consent was procured. The court stayed the suit for one year, preserved the subsisting interim orders and directions, and granted liberty to apply for review. No costs order was made.

Key legal issues

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01

Sub-judice and stay of proceedings under Section 6 of the Civil Procedure Act

Holding

The suit is stayed for one year pending determination in the High Court matrimonial property cause of whether the suit properties are matrimonial properties.

Reasoning

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.

p. 3
02

Jurisdiction of the Environment and Land Court over the spousal consent claim

Holding

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.

Reasoning

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.

p. 2
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Pleadings and the unpleaded sub-judice issue

Holding

Although neither defence pleaded sub-judice or stay, the court entertained the issue on the material supplied, noting parties are bound by their pleadings.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The suit is stayed for one year
  2. 2.The subsisting interim orders and directions shall continue as ordered
  3. 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

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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, "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.