Kinuthia v Kanyi & another (Environment and Land Case E007 of 2023) [2024] KEELC 1625 (KLR)

Although the applicant sought specific performance of a sale agreement, the original title was already charged to the 2nd respondent who had issued a 40-day statutory notice. There was no privity of contract between the applicant and the chargee. The predominant issue was the subsisting legal charge and the statutory power of sale, which per judicial precedent falls within the High Court's jurisdiction. Fraud and due-diligence allegations are secondary.

Relying on Phoenix of E.A. Assurance Co. Ltd v M. Thiga and Equity Bank Ltd v Bruce Mutie Mutuku, the Court held that jurisdiction must exist when a suit is filed; a court cannot transfer a suit filed without jurisdiction, and parties cannot confer jurisdiction by consent or invoke the overriding objective or Article 159 to cure the defect.

The Court restated the classic formulation that a preliminary objection consists of a point of law pleaded or arising by clear implication from the pleadings, which may dispose of the suit, and cannot be raised if facts must be ascertained or judicial discretion exercised. The jurisdictional objection here met that test.