Syovathu v Kanyi & another (Environment & Land Case E001 of 2023) [2024] KEELC 1820 (KLR)
The bottom line
#The Environment and Land Court struck out a homeowner's injunction suit because disputes about a bank's power to sell charged property belong in the High Court.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute centred on a registered charge and statutory power of sale
The court lacked jurisdiction; the predominant issue was the legal charge and statutory notice of sale, which belongs to the High Court
Applying Court of Appeal precedent, the court held that where the predominant issue involves mortgages, charges and statutory notices, the High Court, not the ELC, has jurisdiction. The applicant's claim of fraud in creation of the charge and want of due diligence by the chargee were secondary to the charge and power of sale. Specific performance claims against the chargor could not confer jurisdiction absent privity with the 2nd respondent.
Whether the suit should be transferred or struck out
Struck out, since a suit filed without jurisdiction cannot be transferred
Relying on Phoenix of E.A. Assurance and Equity Bank v Mutie, the court held that no competent suit exists capable of transfer once filed in a court lacking jurisdiction; the only remedy is withdrawal and filing in a court seized of jurisdiction.
Legal principles established
#- Where the predominant issue in a suit is a legal charge and the exercise of the chargee's statutory power of sale, jurisdiction lies in the High Court and not the Environment and Land Court
- A suit filed in a court without jurisdiction is dead on arrival and must be struck out, not transferred, as jurisdiction cannot be conferred by consent or transfer
- Jurisdiction is fundamental; a court without jurisdiction must down tools immediately
Court orders
#- 1.The pending Notice of Motion application 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 (jurisdiction challenged via preliminary objection)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Syovathu v Kanyi & another (Environment & Land Case E001 of 2023) [2024] KEELC 1820 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1820/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.