Pilot Gatias Limited & 2 others v NCBA Bank Kenya PLC & another (Environment & Land Case E143 of 2023) [2024] KEELC 104 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a borrower-lender dispute concerning exercise of statutory power of sale
The ELC lacks jurisdiction; the dominant issue is the settlement of amounts between borrower and lender vis-à-vis the statutory power of sale, which falls within the High Court's jurisdiction under article 165(3).
The Court examined article 162(2)(b) and section 13 of the ELC Act, then applied the predominant purpose test from Suzanne Butler v Redhill Investments. Although the suit concerned a charged property, the Court found there was no dispute as to ownership, use, occupation or title to the land; the dominant issue was the indebtedness and exercise of statutory power of sale, which belongs to the High Court.
Whether a suit filed in a court without jurisdiction must be struck out
No; following Pamoja Women Development Programme and Spinners & Spinners, the appropriate remedy is transfer to the cognate superior court.
The Court adopted the reasoning that constitutionalizing specialised courts was not meant to create jurisdictional traps for litigants. Where a close case is filed in a court of cognate jurisdiction, the interests of justice favour transfer rather than striking out, since parties deserve a fair chance to have cases determined on merit.
Legal principles established
#- Jurisdiction flows from the Constitution or legislation, and a court cannot expand its jurisdiction beyond what is conferred by law.
- Where a dispute over a charged property is predominantly about borrower-lender indebtedness and the exercise of statutory power of sale, the High Court rather than the ELC has jurisdiction.
- In close cases filed in a court of cognate jurisdiction, the proper course is transfer to the appropriate cognate court rather than striking out the suit.
Court orders
#- 1.This suit is hereby transferred to High Court (Commercial and Tax Division) and the Deputy Registrar of this Court is directed to facilitate the same
- 2.The existing interim orders are hereby discharged
- 3.Costs to abide the determination of the main suit
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; sections 4 and 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pilot Gatias Limited & 2 others v NCBA Bank Kenya PLC & another (Environment & Land Case E143 of 2023) [2024] KEELC 104 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/104/eng@2024-01-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.