Ibrahim v Kanyi & another (Environment and Land Case E003 of 2023) [2024] KEELC 1821 (KLR)

The court examined the pleadings and found the 1st respondent charged the suit property to the 2nd respondent to secure a loan, defaulted, and a 40-day statutory notice issued. Although the applicant claims specific performance of a sale agreement, the original title is charged and there is no privity of contract between the applicant and the chargee. Applying precedent that mixed disputes are resolved by their predominant features, the charge and statutory power of sale predominate, so the High Court is the proper forum. Fraud and due diligence claims are secondary.

Relying on Phoenix of E.A. Assurance v Thiga and Equity Bank v Mutie, the court held that a suit instituted in a court lacking jurisdiction is dead on arrival and cannot be remedied by transfer, since no competent suit exists capable of being transferred and parties cannot confer jurisdiction by consent.

The court adopted the classic formulations in Mukisa Biscuit and IEBC v Cheperenger, and Owners of the Motor Vessel 'Lillian S', emphasizing that jurisdiction is everything, that a court must down tools the moment it finds it lacks jurisdiction, and that a preliminary objection is determined on the pleadings without ascertaining facts.