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ELCPartially AllowedRuling on Defendant's Preliminary Objection dated 06/03/2024, arising from Notice of Motion dated 01/03/2024· [2024] KEELC 1316 (KLR)

Muturi v Equity Bank Limited (Environment & Land Case 10 of 2024) [2024] KEELC 1316 (KLR)

Environment and Land Court
7 March 2024
3,570 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court allowed a land sale dispute to proceed but refused to stop a bank auction because the landowner waited too long to file suit.

What this practically means

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Executive summary

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The Plaintiff, a chargor, sought an injunction restraining the Defendant bank from selling two parcels of land, Waitaluk/Kapkoi Block 6/Ketikoi/20 and Kitale Municipality Block 15/Koitogos/4081, in exercise of its statutory power of sale following default on a loan of Kshs. 20,000,000. The Plaintiff contended the property had been undervalued at Kshs. 40,000,000 against a market value of Kshs. 76,300,000. Before the inter partes hearing, the Defendant raised a preliminary objection contending the dispute was purely commercial and lay in the High Court, relying on Co-operative Bank v Kangethe and Sections 99(4) and 97(2) of the Land Act. The court framed three issues: jurisdiction, the temporary injunction, and costs. It first rebuked the plaintiff's counsel for emailing two authorities to the judge after arguments had closed, refusing to consider them as an ambush on the adverse party. Applying Article 162(2)(b), Section 13 of the ELC Act, and Sections 150 and 101 of the Land Act and Land Registration Act, the court held the dispute concerned the sale of land and valuation, within ELC jurisdiction, distinguishing Co-operative Bank v Kangethe as a taking-of-accounts case. It dismissed the preliminary objection. On the injunction, it held that a defective or absent forced sale valuation does not justify stopping an auction absent unconscionability, and that the proper remedy is damages, the bank selling at its own risk. Having waited from 20/12/2023 until five days before the auction, the plaintiff was indolent. The interim injunction was refused, directions issued for filing of responses and submissions, the application set for hearing on 11/04/2024, and each party ordered to bear its own costs.

Key legal issues

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01

Jurisdiction of the ELC over chargor/chargee disputes

Holding

The Court has jurisdiction because the dispute concerns the sale of land and the legality of the valuation underlying the auction; Co-operative Bank v Kangethe concerned taking of accounts, not sale of land.

Reasoning

Article 162(2)(b) and Section 13 of the ELC Act confer jurisdiction over disputes relating to land, including contracts and instruments granting enforceable interests in land. The defendant argued the matter was purely commercial and belonged to the High Court, relying on Co-operative Bank v Kangethe. The court held that decision dealt with taking of accounts on mortgages, not sale of land, and that the statutory jurisdiction provisions post-dated it. Since the challenge here was to the valuation and sale of charged land, jurisdiction lay with the ELC.

p. 5
02

Whether a temporary injunction should issue on the eve of an auction

Holding

Refused. The plaintiff waited over two months from the statutory notice before moving the court, and mere undervaluation does not justify stopping an auction absent unconscionability.

Reasoning

Section 97(2) of the Land Act requires a chargee to obtain a forced sale valuation before exercising the right of sale. Non-compliance does not automatically warrant stopping an auction; the chargor must show the value is so divergent as to be unconscionable, and must move promptly. The plaintiff received notice on 20/12/2023 but filed suit only on 01/03/2024, five days before the auction. Equity aids the vigilant, not the indolent. Whether a valuer was properly engaged is a matter for the hearing and damages.

p. 6
03

Definition and nature of a preliminary objection

Holding

A preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, argued on the assumption that all facts pleaded are correct.

Reasoning

The court adopted Sir Charles Newbold's classic definition in Mukhisa Biscuit, reinforced by Bashir Haji Abdullahi on particularization and Susan Wairimu Ndiangui on clarity. It then applied the principle that jurisdiction must be decided first and immediately on the material before the court, citing Owners of the Motor Vessel 'Lillian S'.

p. 3

Legal principles established

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  • Without jurisdiction a court has no power to make one more step and must down tools immediately.
  • The ELC has jurisdiction over disputes concerning the sale of charged land and the adequacy of valuation in exercise of a statutory power of sale, notwithstanding that the root of the dispute is a loan facility.
  • Failure by a chargee to obtain a forced sale valuation under Section 97(2) of the Land Act does not of itself warrant stopping an auction; the remedy is a claim for damages, and the bank sells at its own risk.
  • Parties may not send authorities to a judge after arguments have concluded without the presence of the adverse party; such materials will not be considered.
  • Equity aids the vigilant, not the indolent; litigants must move the court promptly upon receiving statutory notice of sale.

Court orders

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  1. 1.Dismissal of the preliminary objection dated 06/03/2024
  2. 2.Refusal of the order of temporary injunction pending the inter partes hearing of the application
  3. 3.Respondent given ten (10) days to file a response and serve
  4. 4.Applicant to file written submissions and serve within seven (7) days of service of the Response or lapse of the ten (10) days, whichever is earlier
  5. 5.Respondent to file written submissions within seven (7) days of service by the Applicant or lapse thereof, whichever is earlier
  6. 6.Submissions not to exceed five pages, New Times Roman, Font 12, 1.5 spacing
  7. 7.Application to be heard on 11/04/2024
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act; Section 150 of the Land Act; Section 101 of the Land Registration 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, "Muturi v Equity Bank Limited (Environment & Land Case 10 of 2024) [2024] KEELC 1316 (KLR)", Case Analysis (2024). Ruling on Defendant's Preliminary Objection dated 06/03/2024, arising from Notice of Motion dated 01/03/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1316/eng@2024-03-07

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