Murungi v Kanyi & another (Environment & Land Case E004 of 2023) [2024] KEELC 1823 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a bid to stop a property auction because mortgage disputes belong in the High Court, not the ELC.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a dispute involving a registered charge and statutory power of sale alongside a claim for specific performance of a sale agreement
The ELC lacks jurisdiction; the predominant issue is the legal charge and the statutory power of sale, which the High Court should determine
The court found that although the applicant framed the claim as one for specific performance of a sale agreement, the original title was duly charged to the 2nd respondent, the chargee had defaulted and issued a 40-day statutory notice, and the injunction sought targeted the statutory power of sale. Following Court of Appeal precedent, such mortgage/charge-centred disputes belong to the High Court. Fraud and due diligence issues would be secondary and can be ventilated in the High Court.
Whether a suit filed without jurisdiction should be transferred or struck out
It must be struck out, not transferred, since no competent suit exists capable of transfer
Relying on Phoenix of E.A. Assurance Co. Ltd v M. Thiga and Equity Bank Ltd v Bruce Mutie Mutuku, the court held that a court lacking jurisdiction cannot transfer an incompetent suit to a competent one, as parties cannot by consent confer jurisdiction, and the overriding objective cannot cure a jurisdictional defect.
Legal principles established
#- Where the predominant issue in a suit involves mortgages, charges and the exercise of statutory power of sale, it is the High Court, not the ELC, that has jurisdiction
- A suit filed without jurisdiction cannot be transferred to a competent court; it must be struck out as it is dead on arrival
Court orders
#- 1.The pending Notice of Motion application dated 20th July 2023 is struck out
- 2.The entire suit is struck out with 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, "Murungi v Kanyi & another (Environment & Land Case E004 of 2023) [2024] KEELC 1823 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC suit, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1823/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.