Abdul & 5 others v Kanyi & another (Environment & Land Case E002 of 2023) [2024] KEELC 1631 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a bid to stop a property auction because disputes over a bank charge belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a mixed dispute involving a registered charge/statutory power of sale and sale agreements requiring specific performance
The ELC lacks jurisdiction; the primary issue is the subsisting legal charge and statutory power of sale, which falls to the High Court
Applying the Court of Appeal's precedents (Thomas Mutuku Kasue and Keter v Ecobank), the court examined the substratum of the dispute. Although the applicants sought specific performance of sale agreements, the original title was already charged, no privity of contract existed with the chargee, and the reliefs sought to stop the statutory power of sale. Fraud and due-diligence complaints were secondary. The predominant issue being the charge and the 40-day statutory notice, the High Court is the appropriate forum.
Effect of want of jurisdiction - strike out versus transfer
A suit filed without jurisdiction is dead on arrival and must be struck out, not transferred
Relying on Phoenix of E.A. Assurance Company Limited v M. Thiga and Equity Bank Limited v Bruce Mutie Mutuku, the court held that a court lacking jurisdiction cannot transfer an incompetent suit to a competent one, since no competent suit exists capable of being transferred. Parties cannot confer jurisdiction by consent, nor can overriding-objective provisions cure the defect.
Proliferation and consolidation of suits
Filing a second suit while a similar suit (Mombasa ELC 175 of 2021) was pending is an abuse of court process; the application for consolidation was unnecessary
The court noted a pending application dated 9th November 2023 seeking transfer and consolidation with Mombasa ELC 175 of 2021. It condemned the multiplicity of suits as unbecoming practice, fatiguing courts and litigants, and declined the consolidation as unnecessary given the finding on jurisdiction.
Legal principles established
#- Where the predominant issue in a suit involves a legal charge and the exercise of the chargee's statutory power of sale, it is the High Court, not the Environment and Land Court, that has jurisdiction; and a suit filed without jurisdiction must be struck out, not transferred
Court orders
#- 1.The pending Notice of Motion dated 20th July 2023 is struck out
- 2.The entire suit is struck out
- 3.Costs to the 2nd Respondent
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdul & 5 others v Kanyi & another (Environment & Land Case E002 of 2023) [2024] KEELC 1631 (KLR)", Case Analysis (2024). ELC Case (Malindi) - application dated 20th July 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1631/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.